Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23349 

(k) Cook Inlet (Harvest area: portions 

of Unit 16[B] as specified below) 

(Eligible communities: Tyonek only). 

(1) That portion of Unit 16(B) south of 

theSeason: April 2–May 31 Skwentna 

River and west of the Yentna RiverThat 

portion of Unit 16(B), and August 1–31 

south of the Beluga River, Beluga Lake, 

and the Triumvirate Glacier. 

(2) Closure: June 1–July 31. 

(l) Southeast Alaska. 

(1) Community of Hoonah (Harvest 

area: National Forest lands in Icy Strait 

and Cross Sound, including Middle Pass 

Rock near the Inian Islands, Table Rock 

in Cross Sound, and other traditional 

locations on the coast of Yakobi Island. 

The land and waters of Glacier Bay 

National Park remain closed to all 

subsistence harvesting [50 CFR Part 

100.3]. 

(i) Season: glaucous-winged gull egg 

gathering only: May 15–June 30. 

(ii) Closure: July 1–August 31. 

(2) Communities of Craig and 

Hydaburg (Harvest area: small islands 

and adjacent shoreline of western Prince 

of Wales Island from Point Baker to 

Cape Chacon, but also including 

Coronation and Warren islands). 

(i) Season: glaucous-winged gull egg 

gathering only: May 15–June 30. 

(ii) Closure: July 1–August 31. 

(3) Community of Yakutat (Harvest 

area: Icy Bay [Icy Cape to Point Riou], 

and coastal lands and islands bordering 

the Gulf of Alaska from Point Manby 

southeast to Dry Bay). 

(i) Season: glaucous-winged gull, 

aleutian and arctic tern egg gathering: 

May 15–June 30. 

(ii) Closure: July 1–August 31. 

■ 3. In subpart D, add § 92.32 to read 

as follows: 

§ 92.32 Emergency regulations to protect 

Steller’s eiders. 

Upon finding that continuation of 

these subsistence regulations would 

pose an imminent threat to the 

conservation of threatened Steller’s 

eiders, the U.S. Fish and Wildlife 

Service Alaska Regional Director, in 

consultation with the Co-management 

Council, will immediately under § 92.21 

take action as is necessary to prevent 

further take. Regulation changes 

implemented could range from a 

temporary closure of duck hunting in a 

small geographic area to large-scale 

regional or State-wide long-term 

closures of all subsistence migratory 

bird hunting. Such closures or 

temporary suspensions will remain in 

effect until the Regional Director, in 

consultation with the Co-management 

Council, determines that the potential 

for additional Steller’s eiders to be taken 

no longer exists. 

Dated: May 12, 2009. 

Will Shafroth, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–11663 Filed 5–18–09; 8:45 am] 

BILLING CODE 4310-55-S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 070717352–8886–02] 

RIN 0648–AV65 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Pelagic Longline Take 

Reduction Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) announces its 

determination that the pelagic longline 

fishery has a high level of mortality and 

serious injury across a number of 

marine mammal stocks, and issues the 

final Atlantic Pelagic Longline Take 

Reduction Plan (PLTRP) and 

implementing regulations to reduce 

serious injuries and mortalities of pilot 

whales and Risso’s dolphins in the 

Atlantic pelagic longline fishery. The 

PLTRP is based on consensus 

recommendations submitted by the 

Atlantic Pelagic Longline Take 

Reduction Team (PLTRT). The PLTRP is 

intended to meet the statutory mandates 

and requirements of the Marine 

Mammal Protection Act (MMPA) 

through both regulatory and nonregulatory measures, including a special 

research area, gear modifications, 

outreach material, observer coverage, 

and captains’ communications. 

DATES: This final rule is effective June 

18, 2009. 

ADDRESSES: Copies of the Final 

Environmental Assessment (EA), the 

Regulatory Impact Review (RIR), and the 

Final Regulatory Flexibility Act (FRFA) 

analysis are available from Protected 

Resources Division, NMFS, Southeast 

Region, 263 13th Avenue South, St. 

Petersburg, FL 33701–5505. The PLTRP 

Compliance guide and Pelagic Longline 

Take Reduction Team (PLTRT) meeting 

summaries may be obtained by writing 

to Erin Fougeres, NMFS, Southeast 

Region, 263 13th Avenue South, St. 

Petersburg, FL 33701–5505. 

This final rule, its references, and 

background documents for the PLTRP 

can be downloaded from the Take 

Reduction web site at http:// 

www.nmfs.noaa.gov/pr/interactions/trt/ 

pl-trt.htm and the NMFS Southeast 

Regional Office website at http:// 

sero.nmfs.noaa.gov/pr/pr.htm. 

FOR FURTHER INFORMATION CONTACT: Erin 

Fougeres or Jennifer Lee, NMFS, 

Southeast Region, 727–824–5312, or 

Kristy Long, NMFS, Office of Protected 

Resources, 301–713–2322. Individuals 

who use telecommunications devices 

for the deaf (TDD) may call the Federal 

Information Relay Service at 1–800– 

877–8339 between 8 a.m. and 4 p.m. 

eastern time, Monday through Friday, 

excluding Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule, which serves as the 

final PLTRP, implements regulatory and 

non-regulatory measures recommended 

by the PLTRT to satisfy the 

requirements of the MMPA. Details 

concerning the justification for and 

development of this PLTRP were 

provided in the preamble to the 

proposed rule (73 FR 35623, June 24, 

2008) and are not repeated here. The 

proposed rule provided a 90–day public 

comment period to provide feedback to 

NMFS via electronic submission, 

postmarked mail, or facsimile. In 

addition, one PLTRT meeting was 

conducted during the 90 day public 

comment period. Based on comments 

received (see ‘‘Comments and 

Responses’’ section), NMFS made minor 

changes to the proposed rule. Changes 

between the proposed and final rule are 

noted in the ‘‘Changes from the 

Proposed Rule’’ section. 

Distribution, Stock Structure, and 

Abundance of Pilot Whales 

In the mid-Atlantic bight (MAB), (i.e., 

the area bounded by straight lines 

connecting the mid-Atlantic states’ 

internal waters and extending to 71 W. 

long. between 35° N. lat. and 43° N. lat), 

the Atlantic pelagic longline fishery 

interacts with two species of pilot 

whales. Long-finned pilot whales are 

distributed worldwide in cold temperate 

waters in both the Northern (North 

Atlantic) and Southern Hemispheres. In 

the North Atlantic, the species is 

broadly distributed and thought to occur 

from 40° to 75° N. lat. in the eastern 

North Atlantic and from 35° to 65° N. 

lat. in the western North Atlantic 

(Abend and Smith, 1999). Short-finned 

pilot whales are also distributed 

worldwide in warm temperate and 

tropical waters. In U.S. Atlantic waters, 


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this species is found in the Gulf of 

Mexico (GOM) and in the western North 

Atlantic as far north as the central MAB. 

Both species tend to favor the 

continental shelf break and slope, as 

well as other areas of high relief, but are 

also present offshore in the pelagic 

environment. In the western North 

Atlantic, they may be associated with 

the north wall of the Gulf Stream and 

with thermal fronts (Waring et al., 

1992). 

The two species are difficult to 

distinguish during visual abundance 

surveys, and therefore, in many cases, 

reference is made to the combined 

species, Globicephala spp. Due to this 

difficulty in species identification, the 

species’ boundaries for short-finned and 

long-finned pilot whales in the western 

North Atlantic have not been clearly 

defined. However, their distributions 

are thought to overlap along the U.S. 

mid-Atlantic coast between 35° and 39° 

N. lat. (Payne and Heinemann, 1993; 

Bernard and Reilly, 1999). The greatest 

area of overlap in distribution of the two 

species seems confined to an area along 

the shelf edge between 38° and 40° N. 

lat. in the MAB, where long-finned pilot 

whales are present in winter and 

summer and short-finned pilot whales 

are present in at least the summer 

(Waring et al., 2008). 

Stock structure is not well known for 

long-finned or short-finned pilot whales 

in the North Atlantic. Indirect and 

direct studies on long-finned pilot 

whales indicate that there is some 

degree of stock differentiation within 

the North Atlantic (Mercer, 1975; Bloch 

and Lastein, 1993; Abend and Smith, 

1995; Abend and Smith, 1999; Fullard 

et al., 2000). For short-finned pilot 

whales, there is no available 

information on whether the North 

Atlantic stock is subdivided into smaller 

stocks. 

The total number of pilot whales off 

the eastern U.S. and Canadian Atlantic 

coast is unknown, although estimates 

from particular regions of their habitat 

(e.g., continental slope) exist for select 

time periods (see Waring et al., 2006 for 

a complete summary). Observers at sea 

cannot reliably distinguish long- and 

short-finned pilot whales visually. As a 

result, sightings of pilot whales are not 

identified to species and resulting 

survey estimates are considered joint 

estimates for both species. The best 

available estimate for Globicephala spp. 

in the U.S. Exclusive Economic Zone 

(EEZ) is the sum of the estimates from 

the summer 2004 U.S. Atlantic surveys, 

31,139 (Coefficient of Variation, or 

CV=0.27), where the estimate from the 

northern U.S. Atlantic is 15,728 

(CV=0.34), and from the southern U.S. 

Atlantic is 15,411 (CV=0.43) (Waring et 

al., 2008). This joint estimate is the most 

recent available, and these surveys 

include the most complete coverage of 

the species’ habitats (although the 

PLTRT recognized that this estimate 

was limited to the U.S. EEZ). For 

Globicephala spp., the minimum 

population estimate, which accounts for 

uncertainty in the best estimate (Wade 

and Angliss, 1997), is 24,866. 

Distribution, Stock Structure, and 

Abundance of Risso’s Dolphins 

Risso’s dolphins occur worldwide in 

warm temperate and tropical waters 

roughly between 60° N. and 60° S. lat., 

and records of the species in the 

western North Atlantic range from 

Greenland south, including the Gulf of 

Mexico (Kruse et al., 1999). In the U.S. 

Atlantic EEZ, the species is most 

commonly seen in the MAB shelf edge 

year round and is rarely seen in the Gulf 

of Maine (Waring et al., 2004). Risso’s 

dolphins are pelagic, preferring waters 

along the continental shelf edge and 

deeper, as well as areas of submerged 

relief such as seamounts and canyons 

(Kruse et al., 1999). There is no 

information available on population 

structure for this species. 

Abundance estimates for Risso’s 

dolphins off the U.S. or Canadian 

Atlantic coast are unknown, although 

eight estimates from particular regions 

of their habitat exist for select time 

periods (Waring et al., 2006). Sightings 

of Risso’s dolphins are almost 

exclusively in the continental shelf edge 

and continental slope areas. The best 

available abundance estimate for Risso’s 

dolphins in the U.S. EEZ is the sum of 

the estimates from the summer 2004 

U.S. Atlantic surveys, 20,479 (CV=0.59), 

where the estimate from the northern 

U.S. Atlantic is 15,053 (CV=0.78), and 

from the southern U.S. Atlantic is 5,426 

(CV=0.540) (Waring et al., 2008). This 

joint estimate is the most recent 

available, and the surveys have the most 

complete coverage of the species’ 

habitat (although the PLTRT recognized 

that this estimate was limited to the U.S. 

EEZ). The minimum population 

estimate for the western North Atlantic 

Risso’s dolphin, which accounts for 

uncertainty in the best estimate (Wade 

and Angliss, 1997), is 12,920. 

Potential Biological Removal, Serious 

Injury and Mortality Estimates, and 

Take Reduction Plan Determination 

The Potential Biological Removal 

(PBR) level is the maximum number of 

animals, not including natural 

mortalities, that can be removed 

annually from a stock, while allowing 

that stock to reach or maintain its 

optimum sustainable population level. 

Specifically, it is defined as the product 

of minimum population size (in this 

case, of the portion of the stock 

surveyed within the U.S. EEZ), one-half 

the maximum productivity rate, and a 

recovery factor (MMPA Sec. 3(20), 16 

U.S.C. 1362). The maximum 

productivity rate for both pilot whales 

and Risso’s dolphin is 0.04, the default 

value for cetaceans (Barlow et al., 1995). 

The recovery factor, which provides 

greater protection for endangered, 

depleted, or threatened stocks, or stocks 

of unknown status relative to optimum 

sustainable population (OSP), is 0.48 for 

both species because the CV of the 

average mortality estimate is between 

0.3 and 0.6 (Wade and Angliss, 1997), 

and because both stocks are of unknown 

status. The PBR for both species of 

western North Atlantic pilot whales 

combined (i.e., Globicephala spp.) is 

249, and the PBR for the western North 

Atlantic stock of Risso’s dolphin is 129 

(Waring et al., 2008). 

The 2007 Marine Mammal Stock 

Assessment Report (SAR) reported an 

average combined annual serious injury 

and mortality incidental to pelagic 

longline fishing of 86 pilot whales 

(CV=0.16) and 34 Risso’s dolphins 

(CV=0.32), based on the years 2001– 

2005 (Waring et al., 2008). However, 

more recent estimates (Fairfield-Walsh 

and Garrison, 2007; Garrison, 2007) 

bring the 5–year average annual 

combined serious injury and mortality 

for pilot whales to 109 animals 

(CV=0.194, years 2002–2006) and for 

Risso’s dolphins to 20 animals 

(CV=0.381, years 2002–2006). Based on 

this information, serious injury and 

mortality of pilot whales and Risso’s 

dolphins in the Atlantic pelagic longline 

fishery is below PBR, but exceeds the 

insignificance threshold (i.e., 10% of 

PBR )(69 FR 43338, July 20, 2004). 

Furthermore, NMFS has determined 

that there is a high level of serious 

injury and mortality in the Atlantic 

pelagic longline fishery across a number 

of marine mammal stocks, warranting 

the development and implementation of 

a take reduction plan for both pilot 

whale and Risso’s dolphin stocks. 

Components of the Final PLTRP 

The final PLTRP takes a stepwise, 

adaptive management approach to 

achieve the long-term goal of reducing 

serious injuries and mortalities of pilot 

whales and Risso’s dolphins in the 

Atlantic pelagic longline fishery to 

insignificant levels approaching a zero 

mortality and serious injury rate within 

five years of implementation. A series of 

management measures, implemented by 

this final rule, are designed to make an 


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initial significant contribution to 

reducing serious injury and mortality. 

The final PLTRP also includes research 

recommendations for better 

understanding how pilot whales and 

Risso’s dolphins interact with longline 

gear, as well as assessing current and 

potential new management measures. 

The PLTRT agreed to evaluate the 

success of the final PLTRP at periodic 

intervals over the next five years and to 

consider amending the PLTRP based on 

the results of ongoing monitoring, 

research, and evaluation. 

The PLTRT recommended a suite of 

management strategies to reduce 

mortality and serious injury of pilot 

whales and Risso’s dolphins in the 

Atlantic pelagic longline fishery. The 

complete list of these recommendations 

can be found in Sections VIII and IX of 

the Draft PLTRP (PLTRT, 2006). This 

final rule addresses both the regulatory 

and non-regulatory measures 

recommended by the PLTRT. NMFS 

incorporated nearly all of the PLTRT’s 

consensus recommendations from the 

Draft PLTRP into the proposed and final 

PLTRP, with only minor modifications. 

One consensus recommendation is 

not implemented through this final rule, 

but is implemented under a different 

authority. The PLTRT recommended 

NMFS develop and implement a 

mandatory certification program to 

educate owners and operators of pelagic 

longline vessels about ways to reduce 

serious injury and mortality of marine 

mammal bycatch. NMFS is 

implementing the PLTRT’s 

recommendation using NMFS’ existing 

regulatory authority at 50 CFR 635.8, 

Workshops. On October 2, 2006, NMFS 

published the Consolidated Highly 

Migratory Species (HMS) Fishery 

Management Plan (FMP) and the 

associated final rule (71 FR 58058), 

which requires all HMS longline 

fishermen to attend a NMFS workshop 

and earn certification in mitigation, 

handling, and release techniques for sea 

turtles, sea birds, and other protected 

species. Since 2007, NMFS has 

incorporated education on careful 

handling and release techniques for 

marine mammals, current regulations 

and guidelines related to marine 

mammal bycatch that apply to the 

fishery, and an explanation of the 

purpose and justification of those 

regulations and guidelines into these 

workshops. NMFS will expand the 

content of the workshops as appropriate 

to meet the needs of the PLTRP. 

Regulatory Measures 

NMFS issues the following three 

regulatory measures: (1) a Cape Hatteras 

Special Research Area (CHSRA), with 

specific observer and research 

participation requirements for 

fishermen operating in that area; (2) a 

20–nm (37.04–km) upper limit on 

mainline length for all pelagic longline 

sets within the MAB; and (3) an 

informational placard that must be 

displayed in the wheelhouse and on the 

working deck of all active pelagic 

longline vessels in the Atlantic fishery. 

Cape Hatteras Special Research Area 

As recommended by the PLTRT, 

NMFS is designating a special research 

area offshore of Cape Hatteras (hereafter 

referred to as the CHSRA) with specific 

observer and research participation 

requirements for fishermen operating in 

that area at any time during the year. 

The CHSRA includes all waters inside 

and including the rectangular boundary 

described by the following coordinates: 

35° N. lat., 75° W. long., 36° 25’ N. lat., 

and 74° 35’ W. long (Figure 1). The 

CHSRA encompasses a 5,927 sq km 

(2,288 sq mile) region that over the past 

five years has exhibited both high 

fishing effort and high pilot whale 

bycatch rates. NMFS delineated the area 

to encompass the vast majority of the 

observed marine mammal interactions 

and to exclude the area where inshore 

longline vessels target yellowfin tuna 

and coastal sharks, since the inshore 

area had low observed marine mammal 

interaction rates. 

Vessels in the CHSRA are required to 

carry observers when requested. Vessels 

deploying or fishing with pelagic 

longline gear in the CHSRA must call 

the NMFS Southeast Fisheries Science 

Center (SEFSC) at least 48 hours, but no 

more than 96 hours, prior to embarking 

on the trip. This is in addition to any 

existing selection and notification 

requirements for observer coverage by 

the Pelagic Observer Program (POP). If, 

upon calling in, the vessel is informed 

by the NMFS SEFSC that no observer 

will be assigned and that no special 

research requirements will apply for 

that trip, then the vessel need not wait 

until their stated date and time of 

departure and may depart on their 

fishing trip immediately. If a vessel is 

assigned an observer, the vessel must 

take the observer during that trip; if the 

vessel refuses to take the observer, the 

vessel is prohibited from deploying or 

fishing with pelagic longline gear in the 

CHSRA for that fishing trip. No waivers 

will be granted to vessels fishing in the 

CHSRA that do not meet observer safety 

requirements. By not allowing 

exemptions for observer coverage within 

the CHSRA, NMFS will be able to 

improve observer data and bycatch 

estimates within the CHSRA. 

In addition to the requirement for 

carrying observers, NMFS is also 

requiring vessels in the CHSRA to 

participate in research. This will enable 

focused research on pilot whale 

interactions with the pelagic longline 

fishery, thus contributing to achieving 

the objectives of the PLTRP. Obtaining 

better data for characterizing fishery 

interactions is a high priority. The 

PLTRT was limited in its ability to 

develop management strategies to 

reduce the frequency of interactions 

between pilot whales and longline 

fishing gear due to a lack of information 

regarding the nature, timing, and causes 

of these interactions. The CHSRA, with 

its observer and research participation 

requirements, will enable NMFS to 

assess current and potential new 

management measures and will be 

fundamental in formulating effective 

bycatch reduction strategies in the 

future. 

To implement the research 

participation requirement, observers 

will conduct scientific investigations 

aboard pelagic longline vessels in the 

CHSRA, as authorized by MMPA 

section 118(d)(2)(C). These scientific 

investigations will be conducted in 

addition to observing normal fishing 

activities and will be designed to 

support the goals of the PLTRP. The 

observers will inform vessel operators of 

the specific additional investigations 

that may be conducted during the trip. 

An observer may direct vessel operators 

to modify their fishing behavior, gear, or 

both. Instead of or in addition to 

carrying an observer, vessels may be 

required to carry and deploy gear 

provided by NMFS or an observer or 

modify their fishing practices. By 

calling the NMFS SEFSC, per the 

observer requirement described above, 

vessels are agreeing to take an observer 

and acknowledging they are both 

willing and able to participate in 

research in the CHSRA without any 

compensation. If vessels are assigned 

any special research requirements, they 

must participate in the research for the 

duration of the assignment. If they do 

not participate in the research, they are 

prohibited from deploying or fishing 

with pelagic longline gear in the CHSRA 

for that fishing trip. 

A vessel may transit through the 

CHSRA with pelagic longline gear 

onboard without meeting the observer 

and research requirements specified 

above and in 50 CFR 229.36(d)(1) and 

§ 229.36(d)(2) if that gear is stowed 

according to 50 CFR § 229.36(d)(3). 

Allowing fishing vessels to transit 

through the CHSRA with stowed gear 

without meeting the special observer 

and research requirements for that area 


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will permit vessels to increase their 

safety in the event of foul weather by 

taking the most direct route to port and 

may reduce fuel costs for fishing vessels 

as they will not have to transit around 

the CHSRA to and from port. 

Mainline Length 

In accordance with the PLTRT’s 

recommendation, NMFS is establishing 

a 20–nm (37.04–km) upper limit on 

mainline length for all pelagic longline 

sets within the MAB, including the 

CHSRA. Operators of individual fishing 

vessels are allowed to fish multiple sets 

at one time, if they so desire, but the 

mainline length for each set must not 

exceed 20 nm (37.04 km). 

NMFS may waive this restriction in 

the CHSRA with a written letter of 

authorization from the Director, NMFS 

SEFSC, in specific cases to support 

research for reducing bycatch of marine 

mammals in the pelagic longline 

fishery. Fishermen are strongly 

encouraged to carry this letter of 

authorization on board their vessel 

during research trips, to facilitate at sea 

enforcement. In cases where NMFS 

intends to waive the mainline length 

restriction, NMFS will notify the 

PLTRT. 

Careful Handling and Release 

Guidelines Posting Requirement 

As recommended by the PLTRT, 

NMFS is requiring that an informational 

placard with marine mammal careful 

handling and release guidelines be 

displayed in the wheelhouse and on the 

working deck of all active pelagic 

longline vessels in the Atlantic fishery. 

NMFS has developed and published 

this placard, which is based on the 

existing marine mammal careful 

handling and release guidelines for 

pelagic longline gear. The PLTRT 

specified the placard should draw on 

information presented in a mandatory 

certification program and reference 

filling out a Marine Mammal Injury and 

Mortality Reporting Form for every 

marine mammal interaction as required 

by MMPA section 118(e) and 50 CFR 

229.6. NMFS believes this action will 

facilitate the careful handling and 

release of any pilot whale, Risso’s 

dolphin, or other small cetacean 

incidentally caught during pelagic 

longline fishing. The posting 

requirement ensures NMFS’ guidelines 

are readily available for reference during 

a capture or entanglement event. 

Non-regulatory Measures 

As recommended by the PLTRT, 

NMFS is adopting the following nonregulatory measures as components of 

the final PLTRP: (1) Within constraints 

of available funding, increase observer 

coverage throughout all Atlantic pelagic 

longline fisheries that interact with pilot 

whales or Risso’s dolphins to 12 to 15 

percent; (2) encourage vessel operators 

(i.e., captains) throughout the fishery to 

maintain daily communications with 

other local vessel captains regarding 

protected species interactions, with the 

goal of identifying and exchanging 

information relevant to avoiding 

protected species bycatch; (3) update 

careful handling/release guidelines, 

equipment, and methods; and (4) 

provide quarterly reports of marine 

mammal interactions in the pelagic 

longline fishery to the PLTRT. 

Increased Observer Coverage 

The PLTRT recommended NMFS 

increase observer coverage to 12 to 15 

percent throughout all Atlantic pelagic 

longline fisheries that interact with pilot 

whales and Risso’s dolphins to ensure 

representative sampling of fishing effort. 

The PLTRT specified sampling should 

be designed to achieve statistical 

reliability of marine mammal bycatch 

estimates and should also take into 

account the objectives of marine 

mammal bycatch reduction. If resources 

are not available to provide such 

observer coverage for all fisheries, 

regions, and seasons, the PLTRT 

recommended NMFS allocate observer 

coverage to fisheries, regions, and 

seasons with the highest observed or 

reported bycatch rates of pilot whales. 

The PLTRT recommended additional 

coverage be achieved by either 

increasing the number of NMFS 

observers who have been specially 

trained to collect additional information 

supporting marine mammal research, or 

by allowing designated and speciallytrained ‘‘marine mammal observers’’ 

(deployed by either NMFS or 

cooperating researchers) who would 

supplement traditional observer 

coverage. 

NMFS is implementing this 

recommendation within the constraints 

of available funding. A simulation 

analysis evaluating the effects of 

increased observer coverage on the 

precision of bycatch estimates 

indicated: (1) 12 to 15 percent observer 

coverage would result in the most 

significant gains in precision, (2) setting 

a higher target in this range would 

‘‘guard’’ against unforeseen problems 

placing observers on vessels, and (3) 

further increases in coverage would 

yield relatively little additional 

precision despite significantly higher 

costs. Pilot whales are primarily 

observed to interact with the longline 

fishery in the MAB and Northeast 

Coastal areas; Risso’s dolphins interact 

with the fishery in these areas as well 

as the Northeast Distant area. Based on 

these observations, NMFS will, within 

the constraints of available funding, 

increase observer coverage to 12 to 15 

percent, in order of priority, in the (1) 

CHSRA, (2) MAB, and (3) other areas, 

such as Northeast Coastal. While this 

measure is geared towards improving 

the precision of serious injury and 

mortality estimates, additional coverage 

would also better characterize fishing 

operations and marine mammal 

behavior, facilitate collection of data 

needed for research, and increase 

opportunities to collect biopsy samples 

from hooked or entangled marine 

mammals. 

Captains’ Communications 

The PLTRT recommended NMFS 

encourage vessel operators (i.e., 

captains) to maintain daily 

communication with other local vessel 

operators regarding protected species 

interactions throughout the Atlantic 

pelagic longline fishery with the goal of 

identifying and exchanging information 

relevant to avoiding protected species 

bycatch. Captains’ communication were 

considered as both a strategy for 

avoiding marine mammals’ exposure to 

vessels and gear and as a strategy for 

reducing the probability of an 

interaction once marine mammals are in 

the vicinity of the gear. 

Available information from three case 

studies of voluntary captains’ 

communication programs supports the 

inference that voluntary communication 

programs have substantially reduced 

fisheries bycatch and provided large 

economic benefits that outweigh the 

relatively nominal operating costs 

(Martin et al., 2005). For this 

communication strategy to be effective, 

the exchange of information must be 

timely, the entire fleet in a region must 

cooperate, and it must result in an 

action being taken to either avoid or 

reduce bycatch (e.g., captains need to 

describe the nature of their protected 

species interactions, discuss the results 

of any mitigation or safe handling/ 

release measures used, and share best 

practices). 

Atlantic pelagic longline fishermen 

are motivated to avoid interactions with 

marine mammals, as these interactions 

can result in significant economic loss 

due to loss of both target catch and gear 

from depredation and entanglements, 

respectively. Marine mammal 

interactions also represent a safety risk 

to vessel operators and crew, as pilot 

whales caught in gear can be very 

dangerous due to their size and strength. 

Therefore, NMFS will work with 

CHSRA researchers and fishermen to 


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encourage captains’ communications in 

the CHSRA through voluntary 

cooperation and as part of ongoing 

research. 

Careful Handling and Release 

Guidelines 

The PLTRT recommended NMFS 

update the guidelines for careful 

handling and release of entangled or 

hooked marine mammals. They 

recommended NMFS’ guidelines 

include descriptions of appropriate 

equipment and methods. They also 

encouraged both NMFS and the pelagic 

longline industry to develop new 

technologies, equipment, and methods 

for safer and more effective handling 

and release of entangled or hooked 

marine mammals. They recommended 

developments be evaluated carefully 

and incorporated into revised guidelines 

for careful handling and release of 

marine mammals when appropriate. 

In the winter of 2006, in preparation 

for the workshops for HMS fishermen, 

NMFS worked with the PLTRT and 

other NMFS staff to update a preexisting 

placard to reflect the best available 

information on careful handling and 

release of marine mammals. This 

version of the placard has been 

distributed at HMS training workshops 

in 2007 and 2008. NMFS will 

periodically update the guidelines per 

the PLTRT’s recommendation, based on 

any new technologies, equipment, and 

methods for safer and more effective 

handling and release of entangled or 

hooked marine mammals. 

Additional Research and Data 

Collection 

NMFS will pursue the research and 

data collection goals outlined by the 

PLTRT, within the constraints of 

available funding. These include short- 

, medium-, and long-duration research 

and data collection goals designed to 

enhance the success of the PLTRP. 

Because there is a significant lack of 

information concerning how pilot 

whales and Risso’s dolphins interact 

with the pelagic longline fishery, many 

of the research recommendations are 

general in scope and applicable to both 

pilot whales and Risso’s dolphins 

unless specified otherwise. The 

complete list of these recommendations 

can be found in Section IX of the Draft 

PLTRP (PLTRT, 2006). 

As recommended by the PLTRT, 

priority will be given to: (1) research on 

species with serious injury and 

mortality levels closest to or exceeding 

PBR levels; (2) research to evaluate the 

effects of implemented management 

measures, and (3) research on species 

specific abundance, mortality, and posthooking survivorship. NMFS will 

consider the PLTRT’s recommendations 

for additional research and data 

collection when establishing NMFS’ 

funding priorities. NMFS will follow 

those recommendations to the extent 

that good scientific practice and 

resources allow. As feasible and 

appropriate, NMFS will consult with 

PLTRT members during this process. 

Adaptive Management and Monitoring 

The final PLTRP takes a stepwise, 

adaptive management approach to 

achieve the long-term goal of reducing, 

within five years of its implementation, 

serious injuries and mortalities of pilot 

whales and Risso’s dolphins in the 

Atlantic pelagic longline fishery to 

insignificant levels approaching a zero 

mortality and serious injury rate. A 

series of monitoring and evaluation 

steps are built into the five-year 

implementation phase of the final 

PLTRP. 

Under the final PLTRP, the PLTRT 

will periodically: (1) analyze the status 

of scientific information on pilot whales 

and Risso’s dolphins, (2) evaluate the 

effectiveness of the PLTRP, and (3) 

adjust the PLTRP’s management 

measures and research program, as 

appropriate, to ensure that the goal of 

the PLTRP will be met within 5 years 

of its implementation. Per the PLTRT’s 

request, NMFS will provide any updates 

available on the following types of 

information to inform these periodic 

assessments: (1) Status of PLTRP 

implementation, (2) SARs; (3) habitat 

analyses; (4) data collection and 

research findings; (5) voluntary efforts 

carried out by the pelagic longline 

industry; (6) status of observer coverage; 

and (7) predictive model results for pilot 

whales and Risso’s dolphins, based on 

updated data. 

The timing of these assessments will 

be tied to both the availability of data 

and the time needed to adequately 

evaluate the effectiveness of 

management measures or the results of 

the research program. As requested by 

the PLTRT, NMFS will provide them 

with quarterly reports of bycatch of 

marine mammals in the pelagic longline 

fishery. The quarterly reports will help 

determine when it would be timely and 

useful for the PLTRT to reconvene. In 

conjunction with the receipt of quarterly 

bycatch reports, the PLTRT agreed to 

assess the merits of convening future 

PLTRT meetings, either in-person or by 

teleconference. 

Comments and Responses 

NMFS received ten sets of written 

comments on the proposed rule by the 

September 22, 2008, deadline. 

Comments were received from the 

Marine Mammal Commission, the U.S. 

Department of Interior, North Carolina 

Division of Marine Fisheries, Ocean 

Conservancy, Oceana, Center for 

Biological Diversity, the Humane 

Society of the U.S., two commercial 

fishermen, and one member of the 

public. Three of these organizations 

generally supported NMFS’ use of 

existing authority to implement the 

mandatory HMS longline certification 

workshops. Other comments, which are 

responded to here, were considered 

when developing this final rule to 

amend the regulatory and nonregulatory measures that implement the 

PLTRP. 

General Comments 

Comment 1: The Humane Society of 

the U.S. and Ocean Conservancy agreed 

with NMFS’ determination that the level 

of bycatch in the pelagic longline 

fishery signifies a high level of bycatch 

across a number of marine mammal 

stocks warranting development of a take 

reduction plan. 

Response: NMFS agrees and has 

determined that the high level of take of 

some marine mammal species in the 

Atlantic pelagic longline fishery 

warrants a PLTRP. This final rule is 

composed of regulatory and nonregulatory measures recommended by 

the PLTRT to reduce pilot whale and 

Risso’s dolphin bycatch in the Atlantic 

pelagic longline fishery. 

Comment 2: Ocean Conservancy 

recommended including a map of the 

CHSRA in the final rule. 

Response: NMFS has included a map 

of the CHSRA in Figure 1 of this final 

rule. 

Comment 3: The Humane Society of 

the U.S., Oceana, and the Center for 

Biological Diversity were concerned that 

the establishment of a 20–nm (37.02– 

km) upper limit on the mainline length 

might actually result in more gear being 

deployed to compensate for lost effort, 

thus increasing overall bycatch in the 

pelagic longline fishery. The Center for 

Biological Diversity suggested that 

NMFS should amend the regulation to 

ensure that no more than 20–nm (37.02– 

km) of mainline in total is set by a single 

vessel at a time. Oceana encouraged 

NMFS to require mainline length 

reductions outside the MAB, if they 

were effective at reducing bycatch. 

Response: Using predictive modeling, 

NMFS and the PLTRT evaluated several 

fishery effort compensation scenarios in 

creating the 20–nm (37.04–km) upper 

limit on mainline length regulation. 

These included a scenario in which any 

set with an original mainline length 

greater than or equal to 30 miles was 


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replaced by two, 20 mile sets with the 

same hook spacing as the original, 

longer set. Even under this scenario of 

over-compensation for fishing effort, 

there was an estimated reduction in 

pilot whale interactions of 29 percent 

from the status quo. Thus, the predictive 

model suggests that the number of 

hooks in the water is irrelevant to 

catches of pilot whales, rather it is the 

length of the mainline for each set that 

predicts bycatch (PLTRT, 2006). 

Therefore, NMFS does not believe that 

overall marine mammal bycatch will 

increase in the pelagic longline fishery 

under this final regulation, or that 

vessels should be limited to one 20–nm 

(37.04 km) set at a time. However, 

NMFS will continue to evaluate the 

effectiveness of this final rule for 

reductions in marine mammal bycatch 

in the pelagic longline fishery and will 

address the issue if it appears the 

regulations are having the opposite 

effect intended. 

In addition, the PLTRT recommended 

implementing mainline length 

reductions in the MAB because 81 

percent of pilot whale interactions with 

pelagic longline fishing gear occur in 

this area (PLTRT, 2006). The PLTRT 

recognized that it may be desirable to 

extend the limitation on mainline length 

to sets occurring in other regions of the 

Atlantic fishery, based on additional 

information on the effectiveness of the 

limitation in reducing marine mammal 

bycatch rates in the MAB (PLTRT, 

2006). If mainline length reductions are 

effective at reducing pilot whale and 

Risso’s dolphin bycatch, NMFS will 

consult the PLTRT regarding potential 

expansion of this regulation. 

Comment 4: Two commercial 

fishermen and the N.C. Division of 

Marine Fisheries were opposed to the 

48–hour advance call-in requirement for 

vessels deploying or fishing with 

pelagic longline gear in the CHSRA or 

transiting through the CHSRA with 

pelagic longline gear onboard. Their 

concerns included that: (1) many North 

Carolina fishing vessels make trips that 

are 1–3 days in duration and often 

return to the fishing grounds as soon as 

the catch is offloaded and fuel and ice 

are taken aboard; and (2) fishing in the 

CHSRA is weather, current, and fish 

report/activity dependent, and, 

therefore, the decision of whether to fish 

is often made with less than 12–hours 

notice. They were concerned that a 48– 

hour call-in requirement may result in 

the loss of a fishing opportunity and/or 

loss of favorable weather for fishing. 

The N.C. Division of Marine Fisheries 

recommended that NMFS use a program 

similar to the current observer program 

to notify fishermen of the requirement 

to carry scientific observers, rather than 

the 48–hour call-in requirement. 

Response: NMFS has determined that 

48–hours is the minimum amount of 

time necessary for the NMFS SEFSC to 

have an observer available in the midAtlantic region to observe fishing trips 

in the CHSRA. However, to alleviate the 

burden on fishermen, NMFS is allowing 

vessels to depart prior to their stated 

date and time of departures if, upon 

calling in, the vessel is informed by the 

NMFS SEFSC that no observer will be 

assigned and that no special research 

requirements will apply for that trip. 

Because this is an area of significant 

marine mammal bycatch, NMFS 

believes this measure provides access to 

a productive fishing area while also 

ensuring opportunities to collect data 

and increase our understanding of the 

nature of marine mammal/pelagic 

longline interactions. 

Comment 5: The N.C. Division of 

Marine Fisheries, the Humane Society 

of the U.S., and Ocean Conservancy 

suggested and/or supported allowing 

vessels to transit through the CHSRA 

with pelagic longline gear onboard 

without calling the NMFS SEFSC 48– 

hours in advance, provided all gear 

were properly stowed in accordance 

with current NMFS regulations. The 

N.C. Division of Marine Fisheries 

expressed concern that vessels fishing 

outside the CHSRA and encountering 

unfavorable weather or other vessels 

desiring to transit through the CHSRA to 

reach safe harbor - would be required to 

steam additional distance to bypass the 

CHSRA or ride out the weather until 

48–hours had elapsed, which could 

result in safety hazards, increased fuel 

consumption, lost time, and increased 

expenses. 

Response: NMFS agrees that the 48– 

hour call-in requirement for vessels 

transiting through the CHSRA could 

pose a safety hazard and/or economic 

burden to pelagic longline fishing 

vessels. Therefore, NFMS has created an 

exception to the regulation to allow 

pelagic longline vessels to transit 

through the CHSRA without meeting the 

observer and research requirements 

specified in 50 CFR 229.36(d)(1) and 

(d)(2), if that gear is stowed according to 

§ 229.36 (d)(3). 

Comment 6: The N.C. Division of 

Marine Fisheries requested that the 

language concerning refusal to take an 

assigned observer in the CHSRA be 

clarified to specify that the prohibition 

from deploying or fishing with pelagic 

longline gear in the CHSRA will be for 

the duration of that trip only. 

Response: NMFS agrees that the 

intent was to prohibit fishing in the 

CHSRA only for the trip affected by 

refusal to take an observer or research 

non-participation and has incorporated 

clarifying language into § 229.36(d)(1) 

and (d)(2). 

Comment 7: Four commenters had 

concerns and/or suggestions for NMFS 

regarding compliance with the proposed 

rule. The Center for Biological Diversity 

and the Humane Society of the U.S. 

expressed concern that fishermen might 

avoid observer coverage in the CHSRA 

by only fishing in the area when no 

observers were available. Oceana 

recommended that NMFS and the U.S. 

Coast Guard develop a standardized 

procedure for measuring mainline 

length to assist in compliance and 

enforcement of this regulation. Ocean 

Conservancy recommended that NMFS 

develop a communication plan, to be 

shared with the PLTRT, describing how 

non-compliance with the regulations 

will be enforced. 

Response: With so many factors to 

consider in conducting a fishing trip 

(such as weather, tide, fishing reports), 

NMFS does not believe that it would be 

economically viable for fishermen to 

base their trips solely on observer 

availability. Because fishermen must 

call in 48–hours before each fishing trip 

to the CHSRA, it would be timeconsuming and difficult for fishermen to 

attempt to avoid observer coverage, and 

fishermen will not be able to predict 

when observers are available. 

NMFS will work closely with its 

Office of Law Enforcement, the U.S. 

Coast Guard, and state enforcement 

agents to ensure effective enforcement 

of the regulations described in this final 

rule, including mainline length 

limitations. To protect the integrity and 

covert nature of an enforcement plan, 

though, specific details concerning 

enforcement will not be shared with the 

public. 

Comment 8: Three commenters noted 

the importance of outreach in the 

success of the PLTRP. Ocean 

Conservancy recommended that NMFS 

develop a communication plan, to be 

shared with the PLTRT, describing 

which fishing vessels should call-in to 

deploy or fish with pelagic longline gear 

in the CHSRA or transit through the 

CHSRA with pelagic longline gear 

onboard. The Ocean Conservancy also 

encouraged NMFS to conduct outreach 

with affected fishermen to ensure that 

captains fishing in the CHSRA and 

throughout the MAB communicate with 

each other regarding interactions with 

marine mammals. The Humane Society 

of the U.S. and the Center for Biological 

Diversity encouraged NMFS to 

undertake outreach to ensure that 

pelagic longline vessels have the Careful 

Handling and Release Guidelines 


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Placard, understand its information, and 

are using it appropriately. 

Response: NMFS agrees that 

communication with the pelagic 

longline fishermen and outreach will be 

critical to the success of the PLTRP. To 

ensure that pelagic longline fishermen 

are familiar with the measures outlined 

in this take reduction plan, NMFS will 

develop a compliance guide, which will 

help clarify the regulations and 

necessary compliance actions. 

Fishermen and other interested parties 

will be able to download the 

compliance guide from a website; the 

compliance guide will also be available 

by contacting the Protected Resources 

Division, NMFS, Southeast Region (see 

ADDRESSES). In addition, more than onethird of the PLTRT is composed of 

commercial fishermen and industry 

representatives, who can assist NMFS 

with compliance via outreach to the 

fishermen they represent. NMFS also 

currently has a fishery liaison based in 

North Carolina who can assist with 

outreach to pelagic longline fishermen. 

Finally, NMFS will present elements of 

the PLTRP at the mandatory HMS 

longline certification workshops. NMFS 

has already incorporated education on 

careful handling and release techniques 

for marine mammals, current 

regulations and guidelines related to 

marine mammal bycatch that apply to 

the fishery, and an explanation of the 

purpose and justification of those 

regulations and guidelines into these 

workshops. 

Comment 9: Oceana, Ocean 

Conservancy, the Center for Biological 

Diversity, the Humane Society of the 

U.S., and the Marine Mammal 

Commission supported and/or 

encouraged NMFS to allocate 

appropriate funds to increase observer 

coverage to 12 to 15 percent in the 

Atlantic pelagic longline fishery. A 

commercial fisherman and the Ocean 

Conservancy suggested that NMFS 

station observers in the mid-Atlantic 

region to meet the PLTRP’s goal of 

increased observer coverage in the MAB 

and/or reduce the waiting time for 

fishermen to depart on a fishing trip. 

The N.C. Division of Marine Fisheries 

was concerned that NMFS would not 

have an adequate number of trained 

marine mammal observers to achieve 

the recommended level of observer 

coverage without unduly impacting 

North Carolina pelagic longline 

fishermen. 

Response: NMFS agrees that it is 

important to increase observer coverage 

to 12 to 15 percent in the Atlantic 

pelagic longline fishery, has included 

increased observer coverage as an 

element of this final PLTRP, and will 

attempt to achieve this level of coverage 

within the constraints of available 

funding. NMFS manages its observer 

funding in the most cost effective 

manner for the greatest benefit to our 

living marine resources; therefore, we 

would consider stationing observers in 

the mid-Atlantic region, if it were cost 

effective to do so. If there are 

insufficient funds or trained observers 

available, then NMFS will be unable to 

meet the recommended observer 

coverage of 12 to 15 percent. However, 

this would not affect the fishing ability 

of North Carolina pelagic longline 

fishermen. As discussed in the response 

to Comment 4, within the CHSRA, 

NMFS is allowing fishing vessels to 

depart prior to their stated date and time 

of departures if informed by the NMFS 

SEFSC that no observer will be assigned 

and that no special research 

requirements will apply for that trip. In 

addition, NMFS will make every effort 

to inform fishermen about upcoming 

and future research projects in the 

CHSRA in an attempt to minimize any 

burden placed on those fishermen. 

Comment 10: NMFS received several 

comments on the mandatory HMS 

longline certification workshops and the 

informational placard to be displayed in 

the wheelhouse and on the working 

deck of all active pelagic longline 

vessels in the Atlantic fishery. Ocean 

Conservancy recommended that the 

mandatory HMS longline certification 

workshops include information and 

training on fishermen’s reporting of 

marine mammal interactions, which is 

required by the MMPA Section 118(e). 

They also recommended that marine 

mammal information be included in all 

HMS longline certification workshops, 

including those based in the Gulf of 

Mexico and Caribbean, rather than just 

those in the Atlantic region. The Ocean 

Conservancy, Oceana, and the Marine 

Mammal Commission also suggested 

that NMFS expand the geographic area 

where the informational placard should 

be displayed to the entire Atlantic, Gulf 

of Mexico, and Caribbean. 

Response: NMFS currently includes, 

and will continue to include, 

information and training on the 

reporting of marine mammal 

interactions in the mandatory HMS 

longline certification workshops. NMFS 

agrees that the placard should be 

displayed throughout the Atlantic 

fishery. This was the original intention 

of the PLTRT and this requirement was 

included in the EA and the preamble to 

the proposed rule. However, the placard 

posting requirement was incorrectly 

linked in the regulation text of the 

proposed rule to only the MAB region. 

Therefore, in the final rule NMFS has 

clarified that the placard posting 

requirement specified in 50 CFR 

229.36(c) applies to all U.S. pelagic 

longline vessels operating in the 

Atlantic federal EEZ off the U.S. East 

Coast. 

Because bycatch rates of pilot whales 

and Risso’s dolphins are highest in the 

MAB, the PLTRT limited the scope of 

the PLTRP to the MAB and did not 

include the GOM and Caribbean. As a 

result, NMFS is not requiring the 

placard to be posted outside of the 

Atlantic. However, NMFS will provide 

the placard to any fishermen who 

request it and will encourage voluntary 

compliance with this measure in the 

Gulf of Mexico and Caribbean. 

Comment 11: Oceana, Ocean 

Conservancy, the Center for Biological 

Diversity, the Humane Society of the 

U.S., and the Marine Mammal 

Commission encouraged NMFS to 

secure funding to carry out the research 

priorities outlined in the Draft PLTRP. 

They recommended that the highest 

priority research should be directed 

towards defining the stock structure of 

pilot whales in the MAB. 

Response: NMFS will work with its 

partners and will seek to use available 

funding sources to carry out the 

research and data collection priorities 

outlined by the PLTRT. NMFS is 

currently conducting research to define 

the stock structure of pilot whales in the 

mid-Atlantic and will continue to do so. 

Changes From the Proposed Rule 

After considering the public 

comments received, NMFS is making 

minor changes between the proposed 

rule and this final rule. As a result of 

clarification from the PLTRT regarding 

their intent, NMFS is altering the 

notification process for waiving a 20– 

nm (37.04–km) upper limit on mainline 

length for research in the CHSRA to 

include notifying the PLTRT, but NMFS 

will not publish that notification in the 

Federal Register. NMFS is deleting the 

phrase ‘‘as delineated in the list of 

fisheries’’ from 50 CFR 229.36 (a), 

because it was deemed unnecessary. 

NMFS is also clarifying that the placard 

posting requirement specified in 50 CFR 

229.36(c) applies to all U.S. pelagic 

longline vessels operating in the 

Atlantic Federal EEZ off the U.S. East 

Coast. Although this requirement and its 

geographic scope were clearly stated in 

the EA and the preamble to the 

proposed rule, it was incorrectly linked 

in the regulation text of the proposed 

rule to only the MAB region. 

NMFS is clarifying that under 50 CFR 

635.32, exempted fishing permits, 

scientific research permits, display 

permits, and letters of acknowledgment 


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are issued; Atlantic HMS tunas, 

swordfish, or shark permits are not 

issued. Therefore, the reference to 

§ 635.32 was deleted from the regulatory 

text at 50 CFR 229.36 (a)(1) because it 

did not apply. 

In addition, NMFS is changing the 

regulations for pelagic longline vessels 

in the CHSRA to allow a vessel to transit 

through the CHSRA with pelagic 

longline gear onboard without meeting 

the observer and research requirements 

specified in 50 CFR 229.36(d)(1) and 

(d)(2), if that gear is stowed according to 

50 CFR 229.36(d)(3). The stowage 

definition in § 229.36(d)(3) was not 

presented in the proposed rule, but was 

based on a similar stowage definition for 

bottom longline gear at 50 CFR 

622.34(k)(4)(i). 

NMFS is clarifying the 48–hour callin notification described in 

§ 229.36(d)(1) to state that vessels must 

call in at least 48 hours, but no more 

than 96 hours, prior to departing on a 

fishing trip to the CHSRA. The 96–hour 

limit was added to clearly define the 

amount of lead time a fisher needed to 

provide to NMFS. NMFS is also 

allowing a fishing vessel to depart prior 

to their stated departure time if, upon 

calling in, the vessel is informed by the 

NMFS SEFSC that no observer will be 

assigned and that no special research 

requirements will apply for that trip. 

The SEFSC call-in number given in 

§ 229.36(d) of the final rule is also 

different from that given in the 

proposed rule. Finally, NMFS is 

clarifying in § 229.36(d)(1) that a fishing 

vessel that refuses to take an assigned 

observer is prohibited from deploying or 

fishing with pelagic longline gear in the 

CHSRA for the duration of that fishing 

trip. 

Classification 

NMFS determined that this action is 

consistent to the maximum extent 

practicable with the enforceable policies 

of the approved coastal management 

programs of North Carolina, Virginia, 

Maryland, Delaware, New Jersey, New 

York, Connecticut, Rhode Island, and 

Massachusetts. This determination was 

submitted for review by the responsible 

state agencies under section 307 of the 

Coastal Zone Management Act (CZMA). 

Letters stating concurrence with NMFS’ 

CZMA consistency determination were 

received from the approved coastal 

management programs of North 

Carolina, Virginia, Delaware, 

Connecticut, and Rhode Island. No 

responses were received from Maryland, 

New Jersey, New York, or 

Massachusetts; CZMA consistency in 

these states was inferred. 

This rule does not contain policies 

with federalism implications as that 

term is defined in Executive Order 

13132. 

This rule has been determined to be 

not significant under Executive Order 

12866. 

NMFS prepared a final regulatory 

flexibility analysis (FRFA), based on the 

initial regulatory flexibility analysis 

(IRFA), of the final rule. A statement of 

the need for and objectives of the final 

rule is stated elsewhere in the preamble 

and is not repeated here. A summary of 

the FRFA follows. For a copy of this 

analysis, see the ADDRESSES section. 

NMFS considers all HMS permit 

holders to be small entities because they 

either had average annual receipts less 

than $4.0 million for fish-harvesting, 

average annual receipts less than $6.5 

million for charter/party boats, 100 or 

fewer employees for wholesale dealers, 

or 500 or fewer employees for seafood 

processors. These are the Small 

Business Administration (SBA) size 

standards for defining a small versus 

large business entity in this industry. 

An ‘‘active’’ pelagic longline vessel is 

considered to be a vessel that reported 

pelagic longline activity in the HMS 

logbook. The number of active HMS 

pelagic longline vessels has been 

precipitously decreasing since 1994. In 

the MAB, only 85 unique pelagic 

longline vessels reported effort between 

2001 and 2006. The number of vessels 

fishing in the MAB has declined in 

recent years, and between 2003 and 

2006, the number of vessels reporting 

effort in the MAB ranged between 38 

and 41. 

Four alternatives were considered and 

analyzed for the final rule. Alternative 

1 (the no action alternative) would 

maintain the status quo management for 

the pelagic longline fishery under the 

HMS FMP. Alternative 2 would 

implement only the non-regulatory 

components recommended in the Draft 

PLTRP, while allowing time for 

collecting additional scientific data 

prior to implementing regulatory 

measures. Alternative 3, the preferred 

alternative, would limit the mainline 

length to 20–nm (37.04–km) or less 

within the MAB, designate the CHSRA 

with associated observer and research 

participation requirements, and require 

all pelagic longline vessels to post an 

informational placard on careful 

handling and release of marine 

mammals. Alternative 4 would include 

a six-month closure (July-December) of 

the southern MAB sub-regional area and 

a year-round mainline length reduction 

throughout the MAB, inclusive of that 

sub-regional area. 

Under Alternative 1, the no action 

alternative, it is estimated that the 

Atlantic pelagic longline fleet generates 

an estimated $24.6 million in revenues. 

Under this alternative there would be no 

direct cost or benefit beyond the status 

quo. The non-regulatory actions 

associated with Alternative 2 would 

also be expected to have very little 

economic impact on the fishery. 

NMFS estimated the potential change 

in fishery revenues from the mainline 

length restriction included under 

Alternative 3, depending on the level of 

compensation in fishing effort, by 

applying average species weights 

reported to dealers in 2004 and the 

average 2006 ex-vessel prices reported 

by dealers in the MAB region. The 

change in fishery revenues was 

estimated to range from an increase of 

$777,747 (full compensation in the 

number of hooks fished) to a loss of 

$819,523 (no compensation in the 

number of hooks fished), with an 

estimated loss of $239,383 with 50 

percent compensation in the number of 

hooks fished. This change in revenues 

would impact 41 or fewer vessels per 

year based on current trends in the 

number of active pelagic longline 

vessels and the number of vessels that 

operated in the MAB in 2006. If one 

assumes that 41 vessels are affected by 

this restriction, then the estimated 

annual impact per vessel ranges from an 

increase of $18,969 per vessel to a 

decrease of $19,988 per vessel, with an 

estimated decrease of $5,838 under the 

most likely scenarios (50 percent 

compensation in fishing effort). 

The economic costs of Alternative 4 

were evaluated based upon historical 

observed catch rates and reported effort 

in the MAB fishing area only for the 

period 2002 to 2004. The impact of the 

closure of the southern region of the 

MAB from July-December was estimated 

by assuming no catch in that area, 

resulting in a total estimated cost of 

$770,000. The combined effect of the 6– 

month closure and the mainline length 

restriction through the MAB resulted in 

an estimated cost of $1.64 million, 

reflecting only lost catch and assuming 

no compensation or redistribution of 

effort. The reduction in revenues would 

impact 41 or fewer vessels per year 

based on the current trends in the 

number of active pelagic longline 

vessels and the number of vessels that 

operated in the MAB in 2006. If one 

assumes that 41 vessels would be 

affected by this restriction, then per 

vessel impacts are estimated to be 

$40,000. 

Alternative 1 (the no action 

alternative) and Alternative 2 were not 

selected because they were not expected 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23357 

to meet the conservation objectives of 

the final rule or the goals in MMPA 

section 118. Both Alternatives 3 and 4 

would meet the conservation objectives 

of the final rule. However, Alternative 4 

was not selected because it would likely 

result in larger economic impacts to 

small entities than Alternative 3 (the 

preferred alternative). 

References Cited 

A complete list of all references cited 

in this final rule can be found on the 

PLTRT website at http:// 

www.nmfs.noaa.gov/pr/interactions/trt/ 

pl-trt.htm and the NMFS Southeast 

Regional Office website at http:// 

sero.nmfs.noaa.gov/pr/pr.htm, and is 

also available upon request from the 

NMFS Southeast Regional Office in St. 

Petersburg, FL (see ADDRESSES). 

List of Subjects in 50 CFR Part 229 

Administrative practice and 

procedure, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: May 11, 2009. 

John Oliver, 

Deputy Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 229 is amended 

as follows: 

PART 229—AUTHORIZATION FOR 

COMMERCIAL FISHERIES UNDER THE 

MARINE MAMMAL PROTECTION ACT 

OF 1972 

■ 1. The authority citation for part 229 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. In § 229.3, paragraphs (t) and (u) are 

added to read as follows: 

§ 229.3 Prohibitions. 

* * * * * 

(t) It is prohibited to deploy or fish 

with pelagic longline gear in the MidAtlantic Bight unless the vessel: 

(1) Complies with the placard posting 

requirement specified in § 229.36(c); 

and 

(2) Complies with the gear restrictions 

specified in § 229.36(e). 

(u) It is prohibited to deploy or fish 

with pelagic longline gear in the Cape 


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23358 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

Hatteras Special Research Area unless 

the vessel is in compliance with the 

observer and research requirements 

specified in § 229.36(d). 

■ 3. In subpart C, § 229.36 is added to 

read as follows: 

§ 229.36 Atlantic Pelagic Longline Take 

Reduction Plan (PLTRP). 

(a) Purpose and scope. The purpose of 

this section is to implement the PLTRP 

to reduce incidental mortality and 

serious injury of long-finned and shortfinned pilot whales and Risso’s 

dolphins in the Atlantic pelagic longline 

fishery off the U.S. east coast, a 

component of the Atlantic Ocean, 

Caribbean, Gulf of Mexico large pelagics 

longline fishery. 

(1) Persons subject to this section. The 

regulations in this section apply to the 

owner and operator of any vessel that 

has been issued or is required to be 

issued an Atlantic HMS tunas, 

swordfish, or shark permit under § 635.4 

of this title and that has pelagic longline 

gear onboard as described under 

§ 635.21(c) of this title. 

(2) Geographic scope. The geographic 

scope of the PLTRP is the Atlantic 

Federal EEZ off the U.S. East Coast. The 

regulations specified in paragraphs (b) 

through (d) of this section apply 

throughout the Atlantic Federal EEZ off 

the U.S. East Coast. The regulation 

specified in paragraph (e) of this section 

applies to all U.S. Atlantic pelagic 

longline vessels operating in the EEZ 

portion of the Mid-Atlantic Bight. 

(b) Definitions. In addition to the 

definitions contained in the MMPA and 

§§ 216.3 and 229.2 of this chapter, the 

following definitions apply. 

(1) Cape Hatteras Special Research 

Area (CHSRA) means all waters inside 

and including the rectangular boundary 

described by the following lines: 35° N. 

lat., 75° W. long., 36° 25’ N. lat., and 74° 

35’ W. long. 

(2) Mid-Atlantic Bight means the area 

bounded by straight lines connecting 

the mid-Atlantic states’ internal waters 

and extending to 71° W. long. between 

35° N. lat. and 43° N. lat. 

(3) Observer means an individual 

authorized by NMFS, or a designated 

contractor, placed aboard a commercial 

fishing vessel to record information on 

marine mammal interactions, fishing 

operations, marine mammal life history 

information, and other scientific data; to 

collect biological specimens; and to 

perform other scientific investigations. 

(4) Pelagic longline has the same 

meaning as in § 635.2 of this title. 

(c) Marine Mammal Handling and 

Release Placard. The placard, ‘‘Marine 

Mammal Handling/Release Guidelines: 

A Quick Reference for Atlantic Pelagic 

Longline Gear,’’ must be kept posted 

inside the wheelhouse and on the 

working deck. You may contact the 

NMFS Southeast Regional Office at 

(727) 824–5312 to request additional 

copies of the placard. 

(d) CHSRA—(1) Special observer 

requirements. If you deploy or fish with 

pelagic longline gear in the CHSRA, or 

intend to do so, you must call NMFS 

Southeast Fisheries Science Center 

(SEFSC), 1–888–254–2558, at least 48 

hours, but no more than 96 hours, prior 

to embarking on your fishing trip. This 

requirement is in addition to any 

existing selection and notification 

requirement for observer coverage by 

the Pelagic Observer Program. If, upon 

calling in, you are informed by the 

NMFS SEFSC that no observer will be 

assigned and that no special research 

requirements will apply for that trip, 

then you need not wait until your stated 

date and time of departure and may 

depart on your fishing trip immediately. 

If you are assigned an observer, you 

must take the observer during that 

fishing trip. If you do not take the 

observer, you are prohibited from 

deploying or fishing with pelagic 

longline gear in the CHSRA for that 

fishing trip. You must comply with all 

provisions of § 229.7, Monitoring of 

incidental mortalities and serious 

injuries. In addition, all provisions of 50 

CFR 600.746, Observers, apply. No 

waivers will be granted under 

§ 229.7(c)(3) or § 600.746(f). A vessel 

that would otherwise be required to 

carry an observer, but is inadequate or 

unsafe for purposes of carrying an 

observer and for allowing operation of 

normal observer functions, is prohibited 

from deploying or fishing with pelagic 

longline gear in the CHSRA. 

(2) Special research requirements. In 

addition to observing normal fishing 

activities, observers may conduct 

additional scientific investigations 

aboard your vessel designed to support 

the goals of the PLTRP. The observer 

will inform you of the specific 

additional investigations that may be 

conducted during your trip. An observer 

may direct you to modify your fishing 

behavior, gear, or both. Instead of 

carrying an observer, you may be 

required to carry and deploy gear 

provided by NMFS or an observer or 

modify your fishing practices. By calling 

in per § 229.36(d)(1), you are agreeing to 

take an observer. You are also 

acknowledging you are both willing and 

able to participate in research, as per 

this paragraph, in the CHSRA consistent 

with the PLTRP without any 

compensation. If you are assigned any 

special research requirements, you must 

participate in the research for the 

duration of the assignment. If you do 

not participate in the research, you are 

prohibited from deploying or fishing 

with pelagic longline gear in the CHSRA 

for that fishing trip. 

(3) Exception for transit. If pelagic 

longline gear is appropriately stowed, a 

vessel may transit through the CHSRA 

without meeting the observer and 

research requirements specified in 

§ 229.36(d)(1) and § 229.36(d)(2). For the 

purpose of this paragraph, transit means 

non-stop progression through the area. 

Pelagic longline gear is appropriately 

stowed if all gangions, hooks, and buoys 

are disconnected from the mainline; 

hooks are not baited; longline left on the 

drum is covered with a tarp; and all 

other gear components are either stowed 

below deck or secured on deck and 

covered with a tarp. 

(e) Gear restrictions. No person may 

deploy a pelagic longline that exceeds 

20 nautical miles (nm) (37.04 km) in 

length in the Mid-Atlantic Bight, 

including in the CHSRA, unless they 

have a written letter of authorization 

from the Director, NMFS Southeast 

Fishery Science Center to use a pelagic 

longline exceeding 20 nm (37.04 km) in 

the CHSRA in support research for 

reducing bycatch of marine mammals in 

the pelagic longline fishery. 

[FR Doc. E9–11664 Filed 5–18–09; 8:45 am] 

BILLING CODE 3510–22–S 


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