[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63467-63470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31472]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

Docket No. 97102 1250-7275-02; 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: Final rule; temporary closure of fishery.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this final rule 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 that expires on 
November 26, 1997. This action is necessary to avoid the likelihood 
that this fishery will jeopardize the continued existence of the 
northern right whale (Eubalaena glacialis), a species listed as 
endangered under the Endangered Species Act (ESA), until more long-term 
regulatory measures are issued.

DATES: This closure is effective from 0000 hours, local time, November 
27, 1997 through 2400 hours, local time, July 31, 1998. The amendment 
to 50 CFR 222.34 is effective November 27, 1997 through July 31, 1998.

ADDRESSES: Copies of the May 29, 1997, Biological Opinion (BO), the 
August 29, 1997, amended BO, and an environmental assessment of this 
action may be obtained 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,

[[Page 63468]]

Office of Protected Resources, (F/PR2), NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910, 301-713-2322; 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 agency action is not likely to jeopardize the continued 
existence of a threatened or endangered species.
    One right whale entanglement has been documented in Atlantic 
pelagic drift gillnet gear. The potential exists for further 
entanglements in this gear because the geographic distribution of right 
whales, an endangered species, is close to or overlaps with that of the 
Atlantic drift gillnet fishery during part of the year.
    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 reasonable 
and prudent alternatives for the use of drift gillnet gear that would 
avoid the likelihood of jeopardy for the northern right whale. 
Identification of these alternatives and a further description of the 
basis for this action are provided in the notice of proposed rulemaking 
(62 FR 59335, November 3, 1997).
    On August 29, 1997, NMFS issued an amended BO identifying an 
additional reasonable and prudent alternative which would avoid 
jeopardy to the northern right whale from the Atlantic pelagic drift 
gillnet fishery. That alternative is 100-percent observer coverage with 
expanded time/area closures. 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 northern 
right whales. NMFS is implementing the time/area closure component of 
the reasonable and prudent alternative developed through this 
consultation process.
    NMFS, under emergency authority of the Magnuson-Stevens Act, closed 
the drift gillnet fishery for swordfish in the Atlantic Ocean, 
including the Gulf of Mexico and the Caribbean Sea, from December 1, 
1996, through May 29, 1997 (61 FR 64486, December 5, 1996). NMFS 
extended that closure until November 26, 1997 (62 FR 30775, June 5, 
1997).
    There is not sufficient time to implement the alternatives 
identified in the BOs under the Magnuson-Stevens Act. Therefore, to 
provide necessary protection to the northern right whale, NMFS is 
implementing this measure under the authority of the ESA on a temporary 
basis pending development and implementation of a long-term management 
solution for this fishery consistent with alternatives identified in 
the BOs.
    This rule prohibits 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)).
    A final National Environmental Protection Act document analyzing 
this action has been prepared and is available to interested parties 
(see ADDRESSES).
    This action closes the pelagic driftnet fisheries described in this 
document and is not intended to close coastal drift gillnet or other 
gillnet fisheries in Mid-Atlantic or Northeast coastal waters (as 
defined under 50 CFR 229.2).

Comments and Responses

    NMFS received three letters of comment in response to the notice of 
proposed rulemaking.
    One letter voiced support for the closure, support for the finding 
that the fishery may take right whales, and recognized that the closure 
comports with the southern closure recommended by the Atlantic Offshore 
Cetacean Take Reduction Team (AOCTRT). The second letter indicated that 
certain fisheries need to be closed in certain times of the year as 
part of a comprehensive effort to address the conservation needs of the 
northern right whale, and suggested that this action helped meet that 
need. The third letter voiced concerns about the validity and 
justification for the closure and recommended, for a variety of 
reasons, that the closure not be implemented. Specific comments and 
NMFS responses to them follow.
    Comment: One letter noted that the swordfish stock is weakened, and 
urged NMFS to assess the impact of condensing the drift gillnet fishery 
into one season. In addition, the letter cautioned NMFS about the 
increase in longline fishing (as a consequence of fishers departing the 
drift gillnet fishery) and the potential environmental consequences 
(e.g., increased bycatch) of such a shift.
    Response: NMFS has considered the impact of drift gillnetters 
converting to longline gear stated in the draft EA for the AOCTRP. NMFS 
has concluded that there will be negligible impact from the possible 
conversion of 15 drift gillnetters on the swordfish stock, while 
catches of marine mammals will decrease.
    Comment: Two letters noted that NMFS has not yet implemented an 
AOCTRP and encouraged NMFS to do so in order to implement effective 
management of this and other fisheries in accordance with that plan.
    Response: NMFS regrets that an AOCTRP has yet to be implemented. 
However, the complexity of the AOCTRT's draft plan, and the costs to 
the government to implement the draft plan, changes in stock 
assessments, concerns about impacts on right whales and other 
considerations have resulted in delays. NMFS has prepared a draft 
environmental assessment on the implementation of a AOCTRP, and an 
announcement of availability of the assessment for public comment was 
issued by NMFS on November 4, 1997 (FR 59657).
    Comment: One letter indicated that due to NMFS' inability to 
implement the recommendations of the AOCTRT in a timely manner, further 
closure of the fishery is not warranted.
    Response: This closure is necessary to adequately protect northern 
right whales. Closure of the fishery described in this rule is based on 
a consultation under section 7(a) of the ESA, not on requirements of 
the Marine Mammal Protection Act, or the broader marine mammal concerns 
to be addressed in the AOCTRP. The closure is implementing a reasonable 
and prudent alternative identified in a BO that resulted from that 
consultation.
    Comment: One letter reiterated previous comments on a AOCTRP, in 
which the commenter recommended restricting fishing activities on 
Jeffrey's Ledge and the Great South Channel to reduce the possibility 
of right whale entanglement.
    Response: As noted above, NMFS is working to implement the AOCTRP, 
and these and other comments are being considered in that process.
    Comment: One letter stated that the conclusions of the BO issued on 
August 29, 1997, are flawed because the risks of a single, additional 
winter fishing

[[Page 63469]]

season are not great, and, therefore, the proposed rule is not 
justified. Also, because the winter fishery involves only a single 
vessel, the impacts of allowing this vessel to fish will likely have 
minimal biological impacts.
    Response: NMFS cannot predict how many vessels might participate in 
the winter fishery. As few as one vessel and as many as ten vessels 
have fished during the winter fishery although in recent years between 
one and three vessels have participated. The BO considered the 
potential for participation in the winter fishery in terms of the 
anticipated quota which is more directly related to the total number of 
sets than the number of vessels. Although this action is expected to 
affect a small number of vessels, perhaps only one, the fishery is such 
that each vessel is capable of putting out 1.5 miles (2.4 km) of net 
per set and, depending upon when the quota is reached, has the 
potential for up to an estimated 50 sets. Thus, NMFS believes that the 
possibility of right whale entanglement exists even in a small fishery.
    Comment: One letter noted that the closure is not necessary 
because, in more than 25 years of operation by drift gillnet boats in 
the Mid-Atlantic swordfish fishery, there has never been a documented 
right whale encounter in the winter fishery.
    Response: While no known right whale entanglements have occurred in 
the Mid-Atlantic portion of the fishery during the winter months for 
the 16 years for which NMFS has records for the operation of this 
fishery, one right whale is known to have been entangled in the fishery 
in July 1993. This indicates that such events do occur with this gear. 
Also, the timing and the area of observed fishing effort in the Mid-
Atlantic during the winter occurs in or near areas of right whale 
aggregation and in their migration routes. Therefore, the risk 
associated with fishing in waters off the Mid-Atlantic is higher than 
fishing elsewhere due to its proximity to the right whale migration 
route.
    In addition, entanglement of large whale species other than right 
whales has occurred in this fishery. This evidence suggests that there 
is a risk of interaction with this gear type whenever the distribution 
of right whales occurs in close proximity to fishing operations.
    Photo-identification records indicate that 57 percent of all living 
right whales bear scars from encounters with fishing gear. It is 
possible that entanglements of right whales and other large whale 
species had occurred in this fishery in the past, but went undetected. 
Observer coverage for this fishery has ranged from 8 percent in 1989 to 
87 percent in 1994. Observers have covered the majority of the fleet 
only in 1994, 1995, and 1996. Prior to 1994, however, observer coverage 
of the fishery was less than 50 percent.
    Comment: One letter stated that if the closure was not in place, 
the fishery would open in late November, and the fishery would occur 
further north where the shelf is farther from shore. At that time of 
year and in that area there are no large concentrations of marine 
mammals.
    Response: Historically, the fishery has not opened prior to January 
1. Despite the fact that survey effort is low in many areas, right 
whale sightings have occurred in all months of the year in the waters 
of the continental shelf off the New England coast. These include 
sightings near the shelf break in October, November, and December. NMFS 
has determined that the greatest potential for interactions occurs 
during from November 1 through July 31, the period of this closure.
    Comment: One letter underscored the economic hardship on the single 
vessel owner planning to fish in the winter. Specifically, a fisherman 
involved in the fishery expected the AOCTRP to be implemented; he 
outfitted his longline boat for winter drift net fishing and made other 
arrangements to fish in a fishery he assumed would be open. The same 
fisherman invested in pingers and was interested in determining if 
pingers were successful in reducing marine mammal mortality in this 
fishery.
    Response: NMFS regrets the economic hardship on fishermen caused by 
this closure. NMFS' mission is to ensure that endangered species are 
not jeopardized and some economic consequences may result from 
management decisions made in pursuit of this mission. NMFS notes that 
implementation of the draft AOCTRP (something the commenter strongly 
supports) would likely entail restrictions to the fishery. Therefore, 
the economic hardship would also have to be endured under that 
scenario.
    NMFS is encouraged by efforts to reduce marine mammal bycatch, 
including efforts that involve the use of pingers. Pingers have shown 
some success in reducing entanglement of some marine mammal species, 
and NMFS is encouraged by the interest in conducting pinger experiments 
in this fishery. However, the behavior of right whales indicates that 
they may be less responsive to noise than some other species, and the 
small sample size makes it difficult to design an experiment that would 
produce statistically significant results. NMFS notes that pinger 
experiments are much more likely to produce significant results with 
regard to common dolphins where expected interaction are much higher.
    Finally, such experimentation would be most beneficial if it had 
fleet-wide participation. Data from an experiment with a small sample 
(i.e., one vessel and a relatively few fishing days) are of less value 
than experiments involving controls (e.g., side-by-side comparisons 
with gear not equipped with pingers) and replicates. That is, fleet-
wide participation is needed to ensure samples adequate for meaningful 
comparisons and statistical analyses. In this same regard, no 
experiment has been designed for this fishery or its feasibility 
tested. Also, pingers are expected to be used in other fisheries, and 
worthwhile data are likely to come from pinger experiments in those 
fisheries. The vessel owner may be able to make the pingers he 
purchased available to participants in one of those fisheries.
    Comment: The company owning the single active vessel was not 
notified of the possibility of the closure.
    Response: NMFS provided notice of the conclusions of the BOs and 
provided notice of NMFS' intention to close the fishery by publication 
of the proposed rule. The commenter, the fishing community, and the 
general public were thereby notified that NMFS is developing a long-
range management solution for the fishery.
    Comment: The fishing community was not notified that two fishing 
seasons were combined into one by NMFS.
    Response: In a final rule published in the Federal Register on 
October 24, 1997 (62 FR 55361), establishing regulations on annual 
quotas for the Atlantic swordfish fishery, NMFS indicated that ``[o]n 
August 29, 1997, an amendment to the BO was issued, which identified a 
new reasonable and prudent alternative including time/area closures and 
100-percent observer coverage. Pending implementation of a modification 
to the emergency closure, if such is warranted by the preferred option 
when identified, NMFS has taken action in this final rule to establish 
a single season quota for the driftnet swordfish fishery.''

Changes From the Proposed Rule

    Based on comments received, there were no substantive changes to 
the proposed rule. However, the regulatory text of the proposed rule 
contained an error. While the preamble to the proposed rule clearly 
stated that the closure would be effective on November

[[Page 63470]]

27, 1997, the regulatory text stated that the effective date of the 
closure would be November 1, 1997. The closure is in effect starting 
November 27, 1997. This change is reflected in the regulatory text of 
the final rule.

Classification

    This final rule is necessary to protect the northern right whale in 
accordance with the requirements of the ESA.
    NMFS prepared an EA for this final rule with a finding of no 
significant impact on the human environment. The Assistant General 
Counsel for Legislation and Regulation of the Department of Commerce 
certified to the Chief Counsel for the Advocacy of the Small Business 
Administration that this rule will not have a significant economic 
impact on a substantial number of small entities. No comments were 
received that changed the basis for the original certification. As a 
result, no Regulatory Flexibility Analysis has been prepared.
    NMFS has determined that this rule will 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 was submitted for review by 
the responsible agencies under section 307 of the Coastal Zone 
Management Act.
    As noted above, this rule implements an alternative identified in a 
BO, and is necessary to avoid jeopardy to the northern right whale. 
Therefore, failure to implement the closure identified in this action 
expeditiously would be contrary to the public's interest. Also as noted 
above, 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. Thus, 
this portion of the fishery has not been active since that time. This 
action 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 
action. In addition, the fishery for large coastal sharks was closed on 
July 21, 1997, through December 31, 1997, because that fishery 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 
directed gillnet fishery for tunas in the winter and early summer. NMFS 
will rapidly communicate the dates of this closure to fishing interests 
through the FAX network and NOAA weather radio. Accordingly, the 
Assistant Administrator for Fisheries finds good cause, under 5 U.S.C. 
553(d)(3), to waive the 30-day delay in the effective date normally 
required by section 553(d) of the Administrative Procedures Act.
    This rule does not contain policies with federalism implications to 
warrant preparation of a federalism assessment under Executive Order 
12612. In addition, this rule does not contain new collection-of-
information requirements subject to the Paperwork Reduction Act.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

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 
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; subpart D, Sec. 222.32 also 
issued under 16 U.S.C. et seq.

    2. In subpart D, a new Sec. 222.34 is added to read as follows:


Sec. 222.34  Restrictions on taking right whales incidental to fishery 
operations.

    From November 27, 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. 97-31472 Filed 11-25-97; 4:32 pm]
BILLING CODE 3510-22-F