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Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 635
Atlantic Highly Migratory Species; Pelagic Longline Management; Final Rule
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 991210332-0212-02; I.D. 110499B]
RIN 0648-AM79
Atlantic Highly Migratory Species; Pelagic Longline Management
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues final regulations to prohibit pelagic longline
fishing at certain times and in certain areas within the Exclusive
Economic Zone of the Atlantic Ocean off the coast of the Southeastern
United States and in the Gulf of Mexico, and to prohibit the use of
live bait when deploying pelagic longline gear in the Gulf of Mexico.
This action is necessary to reduce bycatch and incidental catch of
overfished and protected species by pelagic longline fishermen who
target highly migratory species (HMS).
DATES: This final rule is effective September 1, 2000.
ADDRESSES: For copies of the Final Supplemental Environmental Impact
Statement/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (FSEIS/RIR/FRFA), contact Steve Meyers at 301-713-2347 or
write to Rebecca Lent, Chief, HMS Division (SF/1), Office of
Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Steve Meyers at 301-713-2347, fax 301-
713-1917, e-mail steve.meyers@noaa.gov; or Buck Sutter at 727-570-5447,
fax 727-570-5364, e-mail buck.sutter@noaa.gov.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish and tuna fisheries
are managed under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic
Tunas Convention Act (ATCA). The Fishery Management Plan for Atlantic
Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at
50 CFR part 635.
Pelagic Longline Fishery
Pelagic longline gear is the dominant commercial fishing gear used
by U.S. fishermen in the Atlantic Ocean to target highly migratory
species. The gear consists of a mainline, often many miles in length,
suspended in the water column by floats and from which baited hooks are
attached on leaders (gangions). Though not completely selective,
longline gear can be modified (e.g., gear configuration, hook depth,
timing of sets) to target preferentially yellowfin tuna, bigeye tuna,
or swordfish.
Observer data and vessel logbooks indicate that pelagic longline
fishing for Atlantic swordfish and tunas results in catch of non-target
finfish species such as bluefin tuna, billfish, and undersized
swordfish, and of protected species, including threatened and
endangered sea turtles. Also, this fishing gear incidentally hooks
marine mammals and sea birds during tuna and swordfish operations. The
bycatch of animals that are hooked but not retained due to economic or
regulatory factors contributes to overall fishing mortality. Such
bycatch mortality may significantly impair rebuilding of overfished
finfish stocks or the recovery of protected species.
Proposed Bycatch Reduction Strategy
Atlantic blue marlin, white marlin, sailfish, bluefin tuna, and
swordfish are overfished. In the HMS FMP and Amendment 1 to the
Atlantic Billfish FMP (Billfish FMP Amendment), NMFS adopted a strategy
for rebuilding these stocks through international cooperation at the
International Commission for the Conservation of Atlantic Tunas
(ICCAT). This strategy primarily involves reducing fishing mortality
through the negotiation of country-specific catch quotas according to
rebuilding schedules. However, the contribution of bycatch to total
fishing mortality and the fact that ICCAT catch quotas for some species
require that countries account for dead discards must be considered in
the HMS fisheries. The swordfish rebuilding plan that was adopted by
ICCAT at its 1999 meeting provides added incentive for the United
States to reduce swordfish discards.
In addition to ICCAT stock rebuilding efforts, several other
applicable laws require that NMFS address bycatch issues in the HMS
fisheries. These include the Magnuson-Stevens Act, the Marine Mammal
Protection Act (MMPA), and the Endangered Species Act (ESA). Magnuson-
Stevens Act national standard 9 for fishery management plans requires
U.S. action to minimize bycatch and bycatch mortality to the extent
practicable.
Under the MMPA, the Atlantic pelagic longline fishery has been
listed as a Category I fishery due to the frequency of incidental
mortality and serious injury to marine mammals. The Atlantic Offshore
Cetacean Take Reduction Team was formed in May 1996 to address
protected species bycatch in the Atlantic pelagic fisheries. A take
reduction plan, submitted to NMFS in November, 1996, that contained
measures to address the bycatch of strategic stocks of marine mammals,
noted that additional reductions in takes of marine mammals could occur
with closures of certain fishing areas during times of high interaction
rates.
Finally, under the ESA, NMFS is required to address fishery-related
take of sea turtles that are considered threatened or endangered.
Although most turtles are released alive, NMFS remains concerned about
serious injuries of turtles hooked on pelagic longline gear. To the
extent that turtle interactions occur at higher rates in certain
fishing areas at particular times, time-area closures for pelagic
longline fishing could affect turtle takes. An area closure to address
swordfish discards could also help reduce sea turtle interactions if
these animals tend to occur in the same ocean areas at the same time.
Conversely, if sea turtle interactions are relatively higher in areas
that remain open, fishing effort displaced from areas closed to protect
juvenile swordfish could lead to increased turtle takes.
In the final HMS FMP and Billfish FMP Amendment, NMFS stated that a
comprehensive approach to time-area closures would be undertaken as
part of a bycatch reduction strategy after further analysis of the data
and consultation with the HMS and Billfish Advisory Panels (APs). NMFS
held a combined meeting of the HMS and Billfish APs on June 10-11,
1999, to discuss possible alternatives for a proposed rule under the
framework provisions of the HMS FMP. The AP members were generally
supportive of the time-area management strategy, provided several
comments on temporal and/or spatial components that NMFS should
consider further in its analyses, and requested that NMFS develop a
written document outlining all analytical methods and results of the
time-area evaluation. The APs' comments and suggestions were included
in the development of a draft Technical Memorandum, which was made
available to the public on November 2, 1999 (64 FR 59162).
Subsequent to the release of the Technical Memorandum, NMFS
considered three alternative actions to reduce bycatch and/or bycatch
mortality in the Atlantic HMS pelagic longline fishery: status quo,
gear modifications that would decrease hook-ups and/or
[[Page 47215]]
increase survival of bycatch species, and the prohibition of longline
fishing in areas where rates of bycatch or incidental catch are higher.
NMFS considered gear modifications beyond those examined previously
during development of the HMS FMP. NMFS also considered a broad range
of closures, both in terms of area and time. A proposed rule was
published December 15, 1999 (64 FR 69982), for which alternatives were
identified and analyzed in a draft Supplemental Environmental Impact
Statement (64 FR 73550, December 30, 1999). The proposed rule included
closed areas for pelagic longline gear in the western Gulf of Mexico
and off the southeast coast of the United States.
During the comment period on the proposed rule, NMFS received
comment on many issues related to the proposed time/area closures. In
particular, commenters noted that the proposed closure in the western
Gulf of Mexico would not adequately address juvenile swordfish bycatch
in the DeSoto Canyon area of the eastern portion of the Gulf.
Additionally, commenters noted the significant economic impacts
associated with large scale area closures in that vessel operators and
shoreside support services would need considerable time for adjustment
and relocation. Given these comments, NMFS analyzed the potential
impacts of an additional closed area in the DeSoto Canyon.
Subsequently, NMFS published supplementary information regarding the
potential impacts of closing the DeSoto Canyon Area together with a
revised summary of the IRFA prepared for the proposed rule (65 FR
24440, April 26, 2000). The comment period for the proposed rule was
reopened through May 12, 2000, and NMFS specifically requested comments
on the extent to which delayed effectiveness could mitigate the
economic impacts of area closures.
ESA Consultation
On November 19, 1999, NMFS reinitiated consultation under section 7
of the ESA based on preliminary reports that observed incidental take
of loggerhead sea turtles by the Atlantic pelagic longline fishery
during 1999 had exceeded levels anticipated in the Incidental Take
Statement (ITS) previously issued for the HMS FMP. Additionally, the
consultation included the pelagic longline management rulemaking that
was in preparation, as it was recognized that the time/area closures,
if implemented, could affect the overall interaction rates with sea
turtles. In a Biological Opinion issued on June 30, 2000 (BO), NMFS
concluded that operation of the pelagic longline fishery was likely to
jeopardize the continued existence of loggerhead and leatherback sea
turtles. The BO identified the Reasonable and Prudent Alternatives
(RPAs) necessary to avoid jeopardy and listed the Reasonable and
Prudent Measures (RPMs) and Terms and Conditions (TCs) necessary to
authorize continued take as part of a revised ITS. While the
implications of the BO are discussed in this final rule, NMFS will
undertake additional rulemaking and non-regulatory actions as required
to implement the additional management measures required under the BO.
Response to Comments
NMFS received several hundred comments and several thousand form
letters during the 2 comment periods, 13 public hearings, and 2 joint
AP meetings of this rulemaking. Following are summaries of the comments
together with NMFS' responses.
General
Comment 1: There is no conservation benefit from the proposed
closures except for small swordfish; therefore, the proposed time/area
closures will probably have an imperceptible effect on rebuilding
overfished HMS.
Response: NMFS disagrees. Depending on the amount of redistribution
of effort under the proposed closed areas, other species, such as
sailfish and large coastal sharks, may benefit from these closures.
Under the no-effort redistribution model, billfish discards are reduced
by 19 to 43 percent, although, as discussed in the FSEIS, the actual
benefit of these time/area closures is likely somewhere between the
extremes predicted by the effort redistribution models. Further,
prohibiting the use of live bait will provide a 10- to 46-percent
reduction in billfish discards in the Gulf of Mexico. National standard
9 of the Magnuson-Stevens Act requires that FMPs reduce bycatch to the
extent practicable. Although it was not a stated objective of the final
rule to rebuild overfished stocks through time/area closures or gear
modifications, some benefit to rebuilding may also be experienced to
the degree that mortality rates will be reduced for juveniles, pre-
adults, and reproductive fish. Also, to the extent that the United
States can use the domestic bycatch reduction program, including time/
area closures and gear modifications, to convince other ICCAT member
nations that bycatch should be minimized, these actions may have a
significant impact on Atlantic-wide rebuilding of overfished HMS
stocks.
Comment 2: NMFS is already past the deadline for a rebuilding
program for overfished HMS that includes bycatch reduction measures.
Response: NMFS disagrees. The HMS FMP and the Billfish FMP
Amendment include rebuilding plans that meet Magnuson-Stevens Act
guidelines. The swordfish rebuilding program recently adopted by ICCAT
is based in large part on the rebuilding plan outlined in the HMS FMP.
Similarly, the rebuilding plans for blue and white marlin emphasize the
importance of international efforts to reduce bycatch and bycatch
mortality. NMFS implemented bycatch reduction measures in the HMS FMP,
including limited access for swordfish and shark fisheries, time/area
closure for pelagic longline gear to reduce bluefin tuna dead discards,
limiting the length of mainline for longline fishermen, and other
measures summarized in the HMS FMP. The Billfish FMP Amendment also
outlined a bycatch reduction strategy. NMFS expects that additional
measures will continue to be implemented for all HMS fisheries,
including educational workshops that share results of recent research
on gear modifications. Finally, as a result of the jeopardy finding in
the BO, NMFS will initiate implementation of the requirements of the BO
via additional rulemaking and other non-regulatory means.
Comment 3: NMFS should extend the VMS implementation deadline past
June 1, 2000.
Response: NMFS agrees. On April 19, 2000 (65 FR 20918), NMFS
extended the effective date until September 1, 2000. This will provide
adequate time (2 months) to ensure that all systems are fully
functional prior to the implementation of the time/area closures. Also,
implementation of the measures in the BO may require a time/area
closure and/or gear setting restrictions to be enforced by VMS.
Comment 4: As the swordfish stocks continue to rebuild, the United
States may need more U.S. boats to harvest the swordfish quota.
Response: NMFS disagrees. The final regulations implementing the
HMS FMP (May 28, 1999; 64 FR 29090), NMFS established a limited access
program for Atlantic swordfish, Atlantic shark, and the pelagic
longline sector of the Atlantic tuna fisheries. A description of the
qualifying requirements for a directed or incidental limited access
permit is contained in Chapter 4 of the HMS FMP. Using a multi-tiered
process based on participation, approximately 450 limited access
swordfish permits (directed and incidental) were awarded.
[[Page 47216]]
Subsequent examination of fishing activity by these vessels in
preparation of the proposed and final rule indicates that a significant
portion did not report any HMS landings in either 1997 (331 vessels
reported HMS landings) or 1998 (208 vessels reported HMS landings).
Currently, the North Atlantic swordfish stock is estimated to be at 65
percent of the level needed to support maximum sustainable yield (MSY).
When the stock attains the level consistent with MSY, it is likely that
the number of U.S.-flagged vessels with directed or incidental
swordfish permits will be sufficient to handle any potential increase
in the U.S. swordfish quota.
Comment 5: NMFS should be concerned about small sources of
mortality that may exacerbate overfishing and slow rebuilding.
Response: NMFS agrees and is concerned about all sources of
mortality on HMS stocks. NMFS is committed to work through available
international fora to rebuild overfished HMS stocks, even when U.S.
fishing is responsible for only a small source of the total Atlantic-
wide mortality. The rebuilding plans provided in the Billfish FMP
Amendment are indicative of this commitment. Further, the Agency is
required by the Magnuson-Stevens Act to take appropriate conservation
actions, while considering the social and economic impacts on fishermen
and fishing communities, and as such must consider management actions
that meet the national standard guidelines.
Comment 6: NMFS should increase outreach efforts to inform the
public of the need for management of HMS resources.
Response: NMFS agrees but is currently restricted from increasing
outreach efforts by competing demands for funding (e.g., funds for
observers, science). Note that the NMFS Highly Migratory Species
Management Division posts current events and useful documents on the
website www.nmfs.noaa.gov/sfa/hmspg.html. NMFS also produces
informational brochures on current fishing regulations and mailouts
and NMFS uses a fax network for distribution of information. NMFS
scientists are also participating in periodic outreach programs to
share information on life history of billfish, sharks and tunas, as
well as sharing information on methods that will enhance survival of
released fish. An information hotline has also been established that
summarizes current fisheries regulations as they apply to HMS. The
hotline can be accessed by calling toll-free at 1-800-894-5528.
Additional outreach efforts will be implemented as funding becomes
available.
Comment 7: The proposed closed areas will result in an increase in
swordfish imports into the United States; this would deny U.S. seafood
consumers access to fresh, quality-controlled fish.
Response: NMFS does not anticipate that the U.S. fleet will be
unable to meet its quota as a result of this final rule. Therefore, it
is unlikely that imports will increase as a result of closed areas,
although imports may increase for other unrelated reasons. NMFS does
regulate the swordfish market other than to prohibit the import of
undersized Atlantic swordfish into the U.S., which is monitored through
the Certificate of Eligibility program. NMFS does not anticipate that
this rule would affect the availability of high-quality, inspected
seafood products provided to citizens of the United States by U.S.
commercial fishermen. Imports of fishery products into the United
States are also subject to the same hazard analysis and critical
control point (HACCP) guidelines as are domestic landings.
Comment 8: The proposed closed areas are not equitable for
constituents in different states.
Response: As required by national standard 2 of the Magnuson-
Stevens Act, NMFS utilized the best available scientific information to
develop the proposed rule and the final action. NMFS used logbooks,
observer programs, and various scientific studies to identify
distributional patterns of seasonal abundance, by species, and areas of
overlap between various HMS, protected and endangered species, as
defined by concentrations of bycatch and incidental catch from pelagic
longline gear in the U.S. EEZ. Therefore, in large part, the biology of
the species dictated the locations of the closures. In the selection of
the final actions, international obligations and the national standards
were considered, including the issue of equity, as required by national
standard 4. While the final closed areas may have larger impacts on
fishermen who fish in those areas, such impacts are not inconsistent
with national standard 4.
Comment 9: NMFS is ignoring sea bird bycatch by the recreational
fishermen who troll for HMS.
Response: NMFS disagrees that it is ignoring sea bird bycatch. NMFS
has no data indicating that sea birds are caught and discarded in the
recreational fishery for HMS. NMFS is currently implementing a logbook
and a voluntary observer program for charter/headboats involved with
HMS fisheries. This program will provide additional information on
recreational fishing, including any possible interactions with seabirds
or other protected or endangered species. If the data collected
indicate that a sea bird bycatch problem exists in the U.S.
recreational troll fisheries, NMFS will take appropriate action.
Comment 10: NMFS should quantify bycatch and bycatch mortality in
the recreational fishery.
Response: NMFS agrees that quantifying bycatch and bycatch
mortality in recreational fisheries is important and has collected data
used to quantify bycatch of large pelagics in the recreational fishery.
Such data are reported in the U.S. National Report prepared each year
by NMFS for submission to ICCAT. The Billfish FMP Amendment established
a catch-and-release fishery management program for the recreational
Atlantic billfish fishery; therefore, all billfish released alive,
regardless of size, by recreational anglers are not considered as
bycatch. However, the mortality associated with the capture-and-release
event is an important component to quantify for population assessment.
NMFS currently collects data on the number of billfish retained and
released at selected tournaments. NMFS has funded studies to quantify
the bycatch mortality in bluefin tuna and billfish recreational
fisheries, and NMFS scientists have recently reported on the use of
circle hooks to reduce release mortality for the recreational billfish
fishery. NMFS encourages fishermen to handle and release HMS in a
manner that maximizes their chances of survival.
Comment 11: NMFS should re-establish the Second Harvest Program for
swordfish whereby undersized swordfish are fed to the hungry instead of
being discarded as bycatch.
Response: The specific regulations for the swordfish donation
program were eliminated when the HMS regulations were consolidated in
implementing the final HMS FMP and Billfish FMP Amendment (May 29,
1999; 64 FR 29090). During the consolidation process, the swordfish
donation program regulations were evaluated under the President's
Regulatory Reinvention Initiative. Given the low level of participation
in the program at the time and the anticipated reduction in dead
discards of undersized swordfish as the U.S. moved to adopt the
alternative minimum size, it was determined that potential scale of
operations did not require extensive regulatory text. However, under
the current consolidated regulations, a fishermen could apply for an
Exempted Fishing Permit (EFP) to authorize the
[[Page 47217]]
donation of certain fish that could not otherwise be retained (e.g.,
swordfish in excess of the bycatch limits in effect for the particular
vessel). Thus, the regulations still provide a mechanism for a donation
program.
Comment 12: NMFS regulations force pelagic longline fishermen to
discard swordfish, thus increasing bycatch in this fishery. NMFS should
have a higher minimum size with a tolerance for undersized fish to
reduce bycatch.
Response: Swordfish caught below the minimum size are regulatory
discards and, as such, are considered bycatch. The minimum size limit
was established to create an incentive for fishermen to avoid areas of
undersized swordfish, though this was found to be less successful than
anticipated. NMFS discontinued the use of a higher minimum size with a
15-percent tolerance for smaller fish because of concerns about the
difficulty in enforcing such a measure. NMFS proposed a lower minimum
size with no tolerance, and industry participants largely supported
this decrease, stating that most of the fish landed under the tolerance
provisions were just under the higher minimum size. In the Spring of
1999, the ICCAT Advisory Committee recommended that NMFS evaluate the
efficacy of the swordfish minimum size limit and reconsider eliminating
that size limit if warranted. Pending the outcome of that evaluation,
ICCAT is expressly considering discards in the swordfish catch
allocation scheme. Under the 1999 ICCAT recommendation, total North
Atlantic discards of undersized swordfish are subject to an allowance
of 400 mt Atlantic-wide for the 2000 fishing season; the U.S. receives
80 percent of this dead discard allowance (320 mt). The United States
is obligated by international agreement to address swordfish discards.
The time/area closures defined in the final rule will significantly
reduce swordfish discards by U.S. pelagic longline vessels. Although
some small swordfish will still be encountered under time/area
management, the overall proportion of the catch that is discarded will
be reduced and may, in fact, provide an opportunity to consider
alternatives to minimum sizes in the international management of
Atlantic swordfish.
Comment 13: The proposed closed areas are expected to increase the
catch of mako, thresher, and blue sharks. The pelagic shark stocks will
not be able to withstand the possible increase in pelagic shark
mortality (landings and discards) associated with pelagic longlin
effort redistribution.
Response: Although the status of the pelagic sharks stock is
currently designated as unknown, NMFS disagrees that the final rule
will have a significant adverse impact on pelagic shark mortality.
However, this does not mean that NMFS is not concerned about the status
of these stocks. In fact, the HMS FMP established a blue shark quota,
including dead discards from pelagic longline gear, that effectively
sets an upper limit to the magnitude of impacts from displaced effort.
In analyzing the impacts of the final closed areas, NMFS predicts only
a 4-percent increase in pelagic shark landings and estimated discard
rates increase by 8 percent under the effort redistribution model,
which may overestimate impacts on bycatch and target catch. NMFS will
closely monitor all pelagic shark landings through logbook and observer
programs to follow changes in landing patterns resulting from effort
redistribution.
Comment 14: The proposed time/area closures will reduce gear
conflicts between the growing recreational HMS fisheries and commercial
fishing communities, but in some areas, particularly the eastern Gulf
of Mexico and Mid-Atlantic Bight, conflicts could potentially increase.
Response: NMFS previously identified gear conflicts between
recreational and commercial entities in the 1988 Atlantic Billfish FMP
and in the 1999 Amendment to that FMP. NMFS agrees that conflicts
between recreational and commercial fishing groups could escalate in
areas that remain open as a result of pelagic longline effort
redistribution. Mitigating possible user conflicts was one of several
reasons that temporal and spatial components of the proposed action
were refined in the final action and, in the case of the western Gulf
of Mexico, replaced by a live bait prohibition. Any management measure
leading to a reduction in bycatch of billfish from commercial fishing
gear may lead to localized increases in angler success and resultant
economic benefits to associated U.S. recreational industries.
Comment 15: NMFS should consider implementing Individual
Transferable Quotas (ITQs) in the future as a bycatch reduction
measure, particularly for bluefin tuna in the longline fishery.
Response: Implementation of an ITQ scheme, with the sole or even
partial purpose of reducing discards, could be considered and would
require extensive detailed analysis before proceeding. However, NMFS is
prohibited by the Magnuson-Stevens Act from implementing new ITQ
programs at this time. The HMS FMP specifically addressed the bycatch
of bluefin tuna by the pelagic longline fishery through implementation
of a time/area closure during June off the Mid-Atlantic Bight. Initial
results of the efficacy of the first closure (June 1999) are
preliminary and do not indicate that the anticipated reductions were
fully achieved. NMFS is currently reviewing whether the results are due
to (1) a limited time frame for outreach (the final rule was published
on May 28, 1999, with an effective date of June 1, 1999, for the
bluefin tuna pelagic longline closure); (2) enforcement issues (VMS
implementation was delayed until September 1, 2000); or, (3) inter-
annual variation in the areas of BFT interaction (increased discards
occurred outside of the closed area).
Comment 16: Large closed areas will pose significant enforcement
challenges to U.S. Coast Guard (USCG) since the areas identified for
closure in the proposed rule are not routinely patrolled by cutters.
(This comment received from the USCG was followed up by a comment that
supports the use of VMS to enforce closed areas.)
Response: NMFS recognizes the need for effective enforcement of
these closed areas and, as such, supports the use of VMS, which will
become effective for all pelagic longline vessels on September 1, 2000
(65 FR 20918; April 19, 2000). USCG resources will continue to be
utilized, as that Agency is capable of confirming a vessel's location
and whether it is fishing in the closed area. NMFS has entered into a
cooperative agreement with the USCG to assist in the monitoring of
fishing vessels at USCG locations.
Comment 17: NMFS should define the closed area by latitude and
longitude in the regulatory text, including the designation for the
U.S. EEZ.
Response: Except for a small portion of the East Florida Coast
area, NMFS provides latitude and longitude coordinates for the
boundaries to the closed areas in the regulatory text of this final
rule. Given the curvature of the EEZ boundary between the U.S. and the
Bahamas, it would be too complicated to express that segment of the
boundary in latitude and longitude coordinates. NMFS notes that the EEZ
boundary is plotted on most NOAA nautical charts and that vessel
operators fishing that area must be familiar with the EEZ boundary in
any case, as they are not authorized to fish commercially in the
Bahamas.
Comment 18: NMFS should take these proposed closed areas to ICCAT
and encourage international closed areas.
[[Page 47218]]
Response: NMFS supports consideration of closed areas and gear
modifications to reduce undersized swordfish catch and fishing
mortality and to protect spawning and/or nursery areas for swordfish
and billfish on an Atlantic-wide basis, as discussed in the HMS FMP and
Billfish FMP Amendment. In 1999, ICCAT adopted a U.S.-sponsored
resolution for the development of possible international time/area
closures (and gear modifications), and the Standing Committee for
Research and Statistics (SCRS) is scheduled to provide a report on this
topic at the ICCAT meeting in 2002. The final rule will be included in
the U.S. National Report that will be submitted to ICCAT in October,
2000.
Comment 19: NMFS should ban pelagic longline gear or, at least, ban
the use of this gear inside the U.S. EEZ.
Response: NMFS disagrees. Banning pelagic longline gear in the U.S.
EEZ is not necessary to protect highly migratory species. Bycatch can
be addressed through time/area closures, education, and gear
modifications. Requiring all vessels using pelagic longline gear to
fish only outside the 200 mile limit may also be inconsistent with
consideration of safety issues as required under national standard 10.
Comment 20: Closures are not necessary; swordfish are rebuilding.
Response: NMFS agrees that the North Atlantic swordfish stock may
have stabilized and that an international rebuilding program is in
place. To the extent that the time/area closures will reduce bycatch
and bycatch mortality of undersized swordfish, pre-adults, and spawning
fish, the closures will enhance stock rebuilding. Furthermore, NMFS is
required by an ICCAT recommendation and under national standard 9 to
minimize bycatch, to the extent practicable. Providing protection of
small swordfish and reproducing fish though time/area closures is
particularly critical as stocks begin to rebuild. The United States is
allocated 29 percent of the north Atlantic swordfish quota (1997
through 1999), and approximately 80 percent of the reported dead
discards. Under the 1999 ICCAT recommendation, the total North Atlantic
dead discard allowance for the 2000 fishing season is 400 mt; the U.S.
receives 80 percent of the North Atlantic dead discard allowance (320
mt). The dead discard allowance for the United States is reduced to 240
mt in 2001, 160 mt in 2002, and will be phased out by 2004, with any
overage of the discard allowance coming off the following year's quota.
A total of 443 mt of swordfish were reported discarded by U.S.
fishermen in the North Atlantic during 1998. Under the time/area
strategy of the final rule, the no effort redistribution model predicts
a 41.5-percent reduction in discards; under the effort redistribution
model, discards are reduced by 31.4 percent. The closures could
potentially reduce discards from 1998 levels to 259 mt under the no-
effort redistribution model and to 304 mt under the effort
redistribution model, thereby meeting at least the year 2000 discard
allocation levels without affecting the subsequent year's quota.
Comment 21: NMFS should increase observer coverage of all
components of HMS fisheries, including the pelagic longline fishery.
Response: NMFS agrees that it would be beneficial to increase
observer coverage to document bycatch in all HMS fishing sectors.
Observer coverage of the pelagic longline averaged between 4 and 5
percent between 1992 through 1998; a total of 2.9 percent of pelagic
longline sets were observed during 1998. However, given current fiscal
constraints, NMFS will not likely be able to significantly increase
observer coverage in the pelagic longline fishery. NMFS will
investigate additional funding mechanisms. Depending on funding, NMFS
may implement an initial phase of the HMS charter/headboat and
voluntary observer program in the summer of 2000 that will provide
additional bycatch information from recreational fisheries.
Comment 22: NMFS should develop a comprehensive bycatch strategy,
including specific targets for bycatch reduction.
Response: NMFS disagrees that setting fixed bycatch targets is
necessary; in fact, such targets may be counterproductive. The multi-
species approach followed in the development of the proposed and final
action to reduce bycatch, bycatch mortality, and incidental catch
precludes setting target reduction for specific species without
considering the impact on the remaining portion of the catch
composition. For example, if the time/area closures were simply based
on reducing swordfish discards by a set percentage, a concomitant
increase in bycatch of other species could occur, or target catches
could be reduced more than necessary to achieve national standard 9
mandates. NMFS agrees that a comprehensive bycatch strategy is
necessary and has outlined a plan that incorporates data collection,
analysis, and measures that minimize bycatch, to the extent
practicable. This strategy is outlined in the HMS FMP and the Billfish
FMP Amendment.
Comment 23: NMFS should conduct educational workshops.
Response: NMFS supports the use of educational workshops to
disseminate information on current research regarding bycatch reduction
and to provide a forum through which fishermen can share bycatch
reduction techniques with each other. NMFS scientists periodically hold
seminars for fishermen to discuss the benefits of circle hooks and
other handling techniques in the recreational billfish fishery. NMFS
will seek input from representatives of fishing organizations and from
the AP members regarding opportunities for workshops. Depending upon
available funding and staff, NMFS will hold educational workshops to
examine bycatch reduction activities in HMS fisheries, both for
recreational and commercial fishermen.
Comment 24: NMFS needs to be able to respond quickly to results of
monitoring and evaluation of closed areas. NMFS should develop a
framework process for adjusting closed areas, if necessary, in a timely
manner.
Response: NMFS agrees that a quick response to shifting fishing
effort patterns is necessary. NMFS is currently able to adjust or
develop new closed areas through the framework process (proposed and
final rules, including public comment period) without amending the HMS
FMP in the event that closed areas need to be altered to maximize the
benefits to the nation. However, it will take time to collect and
analyze the appropriate information, including data from the mandatory
logbooks, observer program, and VMS.
Comment 25: NMFS should reduce effort in the longline fishery, not
just reduce bycatch.
Response: The intent of this rulemaking is not to reduce effort in
the fishery, but to reduce bycatch while minimizing the reduction of
target catch by shifting effort away from areas with high bycatch and
incidental catch. NMFS agrees that under a quota system, a time/area
closure scheme will not necessarily reduce effort, although some vessel
operators may choose to discontinue fishing due to economic or social
factors. The use of time/area closures and gear restrictions
(prohibition of live bait) was deemed by NMFS to be the best available
management tool to reduce current levels of bycatch by the pelagic
longline fishery, as required by national standard 9.
Comment 26: NMFS should consider additional actions to address the
impact of the increase in sea turtle interactions resulting from
pelagic longline effort redistribution.
Response: NMFS agrees that sea turtle interactions with pelagic
longline gear
[[Page 47219]]
must be minimized as required by the ESA for listed species. On
November 19, 1999, NMFS reinitiated consultation with NMFS' Office of
Protected Resources based on preliminary information on the 1999 take
levels by the pelagic longline fishery. The BO issued on June 30, 2000
concluded that the continuation of the pelagic longline fishery could
jeopardize the continued existence of loggerhead and leatherback sea
turtles. The final time/area closures along the southeastern U.S.
Atlantic coast were temporally and spatially reconfigured to mitigate,
to the extent practicable, the impact of effort redistribution on sea
turtle interactions. Bycatch rates, particularly for sea turtles, may
be over-estimated by the effort redistribution model because the model
estimated bycatch rates by assuming random or constant catch-per-unit-
effort in all remaining open areas. This estimation procedure could
skew results for certain species if those species are concentrated in
certain areas (such as sea turtles in the Grand Banks), instead of
being randomly distributed over the entire open area. Fishing
activities will be monitored using VMS, as well as through logbooks and
on-board observers, to determine impacts of actual effort
redistribution, which may require further Agency action to address
increased turtle takes. NMFS is initiating efforts to address the
requirements of the BO, including possible regulatory and non-
regulatory actions.
Comment 27: NMFS is proceeding with the use of time/area management
strategies only because of litigation filed against NMFS by various
environmental groups following publication of the final rules
implementing the HMS FMP.
Response: NMFS disagrees. During public hearings held during the
Fall of 1998 as part of the scoping process used to develop management
alternatives for the draft HMS FMP and the Billfish FMP Amendment, NMFS
received many comments regarding the utility of time/area closures to
reduce bycatch in various HMS fisheries, including pelagic longline
gear, and their use in protecting essential fish habitat (e.g.,
spawning and nursery grounds). The draft HMS FMP included a closure of
a portion of the Florida Straits to reduce swordfish discards. Comments
on the proposed action indicated that the area was spatially and
temporally too limited to accomplish any significant reduction in
bycatch, and, consequently, the area was not included as part of the
final action. However, the HMS FMP clearly stated that, following
publication of a final rule, an evaluation of wide-ranging time/area
closures would be completed and implemented, if warranted. NMFS honored
that commitment through the preparation of the Draft Technical
Memorandum and the proposed and final rules, establishing both time/
area and gear modifications to reduce bycatch by the U.S. Atlantic HMS
pelagic longline fishery.
Comment 28: The comment period for the DeSoto Canyon area closure
alternative is too short. Additional time must be provided to allow
those in the affected area to adequately respond to this potentially
devastating closure.
Response: NMFS disagrees that additional time was warranted for
public comment on the DeSoto Canyon closure alternative. During the
public hearing period for the proposed rule (December 15, 1999, to
March 1, 2000), NMFS received many comments indicating that an
additional closure was needed in the northeastern Gulf of Mexico
because of the historically high swordfish discard rate in the area. In
response to this comment, NMFS conducted additional analysis and
identified an area generally around the DeSoto Canyon that in fact did
have high incidence of discards of swordfish relative to swordfish
kept. Although the DeSoto Canyon is included within areas that were
analyzed in the DSEIS and draft Technical Memorandum (made available
November 1999), NMFS decided that an additional comment period was
needed specifically on the potential utility of this closure because
pelagic longline effort has declined by greater than 50 percent in this
area over the past 5 years. NMFS notified the public of its intentions
to consider a sub-area of previously analyzed areas in the Gulf of
Mexico (i.e., DeSoto Canyon) through the HMS fax network, which is sent
to thousands of permit holders, seafood dealers and fish houses
throughout the eastern United States. In addition, NMFS mailed the
Federal Register notice with supplementary information summarizing the
biological, economic, and social analysis of the DeSoto Canyon closure,
and the VMS materials to all HMS pelagic longline permitees. As a
result of the April 26, 2000, Federal Register notice (65 FR 24440)
soliciting comment on this alternative, NMFS received hundreds of
responses, indicating that adequate time was provided for comment.
Comment 29: Fish farming is the only answer to providing fish as a
food for our population.
Response: NMFS agrees that aquaculture and mariculture play and
have an important role to play in providing fishery products, but
disagrees that they are the only answer.
Use of Time/Area Closures to Reduce Bycatch
Comment 1: NMFS should use time/area closures to reduce bycatch.
Response: NMFS agrees that closed areas can be an effective way to
reduce bycatch, both in the U.S. and international pelagic longline
fisheries, and this final rule implements time/area closures for the
pelagic longline fisheries in the Gulf of Mexico and along the
southeastern U.S. Atlantic coast. Due to efforts of the United States,
ICCAT has asked its scientific committee to explore the use of closed
areas throughout the management unit. Swordfish, marlin, sailfish, and
other HMS are considered overfished and are currently experiencing
overfishing Atlantic-wide. The rebuilding plans established in the HMS
FMP and the Billfish FMP Amendment will be enhanced to the extent that
reduction of bycatch will decrease mortality of juveniles and
reproductive fish. Further, a reduction in swordfish discards is now
critical for the U.S. pelagic longline fishery as a result of the 1999
ICCAT recommendation setting an North Atlantic discard allowance that
is incrementally reduced to a zero tolerance level by 2004.
Comment 2: NMFS should change the size and/or shape of the proposed
western Gulf of Mexico closed area.
Response: NMFS agrees and is closing the DeSoto Canyon area year-
round to pelagic longline fishing to address undersized swordfish
discards and to prevent further increases in swordfish discards as a
result of possible effort displacement to this area in response to the
southeastern U.S. Atlantic coastal closures. Further, NMFS has
attempted to mitigate the economic effects of the actions specifically
aimed at reducing billfish bycatch, by eliminating the proposed western
Gulf closure and by prohibiting use of live bait by pelagic longline
vessels in the Gulf of Mexico instead. This gear modification is
potentially as effective in reducing sailfish discards as the western
Gulf closure and is approximately half as effective in reducing marlin
discards. However, in consideration of the magnitude of U.S. billfish
discards relative to Atlantic-wide levels and the extent of the
economic impacts associated with the proposed western Gulf closure,
modifying fishing practices is a viable alternative that effectively
accomplishes the objectives of reducing billfish bycatch while allowing
fishing to continue in the western Gulf of Mexico.
Comment 3: Several commenters supported a closure of the Charleston
[[Page 47220]]
Bump area. Conversely, other commenters stated that the level of
fishing activity in the Charleston Bump area does not warrant closure
of this area.
Response: Although pelagic longline activity in the Charleston Bump
area results in bycatch of small swordfish throughout the year, over 70
percent of the swordfish bycatch takes place during February through
April. Therefore, NMFS is closing the Charleston Bump area for this 3-
month time frame of the highest discard rates. This partial year
closure addresses the bulk of swordfish discards while minimizing
social and economic impacts of the rule by allowing fishing for 9
months, rather than the year-round closure included in the proposed
Agency action. Minimizing the temporal component of the Charleston Bump
closure also reduces the magnitude of potential increases in sea
turtles interactions and white marlin discards predicted by the
displaced effort model for the proposed rule. Nevertheless, NMFS is
aware of the overall concerns regarding this area relative to potential
increases in effort and concomitant effects on bycatch and incidental
catch and will monitor fishing activity to determine whether a larger
longer closure is necessary in the Charleston Bump area. If necessary,
NMFS would pursue further action through the FMP framework process.
Comment 4: NMFS should consider additional pelagic longline closed
areas in a future rulemaking.
Response: NMFS agrees that additional closed areas may be necessary
to address bycatch, bycatch mortality, and incidental catch,
particularly to address sea turtle takes as discussed in section 5.8 of
the FSEIS. Shifts in fishing effort patterns may also warrant future
rulemaking to close affected areas. NMFS will continue to monitor the
pelagic longline fleet throughout its range.
Comment 5: NMFS should change the shape, size, and/or timing of the
South Atlantic proposed closed area.
Response: NMFS agrees. NMFS is closing the southern part of the
proposed Southeast area below 31 deg.N latitude (East Florida Coast)
year-round in order to maximize the bycatch reduction benefits. The
northern portion of the proposed closed area (Charleston Bump) is
closed for the period of highest swordfish discards during February
through April. NMFS may consider a larger closure in the Charleston
Bump area if effort increases significantly in this area, resulting in
increased incidental catches or discards of overfished HMS or protected
species. NMFS would pursue this action through the FMP framework
process.
Comment 6: NMFS should include a closure of the Mid-Atlantic Bight
and/or a Northeast area to pelagic longline gear.
Response: NMFS disagrees that this rule should close the Mid-
Atlantic Bight and/or Northeast coastal statistical areas. The areas
closed by this rule are considered temporal and spatial ``hot spots''
for HMS bycatch from U.S. pelagic longline effort within the U.S. EEZ,
as evaluated by the frequency of occurrence and the relationship
between total catch and discard rates. NMFS has included a closure in
the mid-Atlantic area as part of the final HMS FMP to reduce bluefin
tuna discards from pelagic longline gear. Nevertheless, NMFS recognizes
that pelagic longline effort will likely increase in areas that remain
open (as analyzed in the redistribution of effort model in FSEIS). By
minimizing the size of the closure in the Gulf of Mexico and shortening
the closed season for the Charleston Bump area, NMFS expects that the
effects of effort redistribution would be lessened from those evaluated
in the DSEIS and proposed rule. Considering HMS bycatch, closures of
the Mid-Atlantic Bight, beyond the June pelagic longline closure for
bluefin tuna discards, or in the offshore waters in the Atlantic Ocean
off the northeastern United States are not warranted at this time. NMFS
will continue to monitor the pelagic longline fleet throughout its
range and will take appropriate action if necessary through the
proposed and final rule process to reconfigure closures. In addition,
as required by the BO, NMFS will consider measures to reduce and
monitor interactions with sea turtles, particularly in the pelagic
longline fishing grounds on the Grand Banks. Such measures may include
area closures.
Comment 7: NMFS should close areas to both commercial and
recreational pelagic fishing. NMFS should consider closing areas to
recreational rod and reel fishermen, particularly to protect small
bluefin tuna.
Response: NMFS disagrees. The closures included in the final rule
address the requirements of national standard 9, while minimizing, to
the extent practicable, the significant economic impacts that will be
experienced by this fishery, as required by national standard 8.
Monitoring programs in place do not identify the recreational fishery
as a source of excessive bycatch. In fact, NMFS established a catch-
and-release fishery management program in the Billfish Amendment in
recognition of the operational patterns of the recreational fishery to
encourage further catch and release of Atlantic billfish. However, NMFS
continues to address both monitoring of the recreational fishery and
any bycatch mortality that does occur. At this time, NMFS encourages
recreational fishermen to increase survival of released fish through
the use of dehooking devices, circle hooks, and other gear
modifications that may reduce stress on the hooked fish. Further,
depending upon the availability of funding, NMFS will offer educational
workshops in order to reduce bycatch in the recreational fishery.
Comment 8: NMFS should consider ``rolling closures'' to spread the
impacts throughout the region.
Response: NMFS considered and rejected rolling closures. The HMS
and Billfish APs advised NMFS that rolling closures may not be
effective. MFS conducted analyses to consider closures with varying
spatial limitations on a seasonal basis along the southeastern U.S.
Atlantic coast; however, none were as effective as the final action
(see section 7 of the FSEIS). Economic impacts of the closures were
minimized, to the extent practicable, in light of the objectives of the
conservation measures.
Comment 9: NMFS should use oceanographic conditions to define the
size, shape, and timing of area closures.
Response: NMFS agrees that many life history characteristics of HMS
are driven by oceanographic conditions, including the strength of the
Gulf Stream in the Atlantic, the loop current in the Gulf, and the
eddies that spin off these structures. By following long-term
distributional patterns in establishing the temporal and spatial
components of the closures, oceanographic conditions were indirectly
utilized in defining and evaluating the effectiveness of the time/area
closures. The sizes of the closures around the Charleston Bump and
DeSoto Canyon are examples of how NMFS accounted for variations in the
current patterns to establish the closed area boundaries.
Comment 10: NMFS should alter the closed areas to be consistent
with Congressional proposals.
Response: NMFS disagrees. The objectives of the legislative
proposals are not identical with those of this action. This final rule
reflects the four objectives stated in the proposed rule: (1) maximize
the reduction of finfish bycatch; (2) minimize the reduction in target
catch of swordfish and other species; (3) consider impacts on the
incidental catch of other species to minimize or reduce incidental
catch levels; and (4) optimize survival of bycatch and incidental catch
species.
[[Page 47221]]
NMFS has reviewed the various legislative proposals and provided, in
testimony before Congress, an analysis of the relative effectiveness of
the closures following the methods outlined in the FSEIS. In addition
to bycatch reduction, the legislative actions also consider gear
interactions and economic mitigation through a buyout program, which
are beyond the scope of this rulemaking.
Comment 11: The closures proposed by NMFS ignore an historically
high area of swordfish discards and nursery grounds in the DeSoto
Canyon in the northeastern Gulf of Mexico.
Response: NMFS agrees and is closing an area in the northeastern
Gulf of Mexico that includes the DeSoto Canyon. In the draft Technical
Memorandum issued with the proposed rule, NMFS had evaluated the
closure of a larger area in the Gulf of Mexico (area Bill D) that
included the DeSoto Canyon. However, the primary objective for closures
in the Gulf of Mexico in the proposed rule was to reduce billfish
discards in the western Gulf of Mexico. In responding to comments on
the use of live bait, NMFS noted in the FSEIS (see section 7.2) that
the higher discards in the western Gulf were a likely result of fishing
practices rather than a reflection of relatively higher abundance.
Historically, catches of small swordfish were high in the DeSoto Canyon
area; however there has been considerably less effort in this area in
recent years, which is likely a reflection of the stricter minimum size
limit for swordfish with no tolerance. Further rationale for the
northeastern Gulf of Mexico closure is to prevent additional effort in
this area by pelagic longline fishermen displaced from the southeastern
U.S. Atlantic coast closures, which could negate the effectiveness of
East Florida Coast and Charleston Bump closures in reducing swordfish
discards.
Comment 12: NMFS should reconsider the proposed closed areas
because the increase in the bycatch of blue marlin, white marlin, and
large coastal sharks is not ``worth'' the decrease in swordfish bycatch
expected to result from the proposed closed areas.
Response: The effort redistribution model used in the DSEIS and
FSEIS is based on the assumption that all effort in the closed areas is
randomly distributed throughout the remaining open areas and, as such,
offers an estimation of the ``worst-case scenario'' from a biological
perspective. This model estimates that discards of blue marlin could
increase by 6.6 percent and white marlin by 10.8 percent. Blue marlin
bycatch rates may be over-estimated by the effort redistribution model
because the model estimated bycatch rates by assuming random or
constant catch-per-unit-effort in all remaining open areas. This
estimation procedure could skew results for certain species if those
species are concentrated in certain areas, instead of being randomly
distributed over the entire open area (see section 7 and appendix C of
the FSEIS for full description of analytical procedures). Pelagic
longline effort in the Caribbean (fishing areas below 22 deg. N.
latitude) represents approximately 14 percent of the total U.S.
Atlantic-wide fishing effort, but accounts for over half of the total
blue marlin discards by U.S. pelagic longline vessels. These areas were
not considered for closure since they are generally located outside
U.S. EEZ waters. Therefore, it is likely that the no-effort
redistribution model would be more applicable for blue marlin (12
percent reduction in discards). White marlin discards were less
concentrated in the Caribbean (32 percent of total Atlantic-wide
levels) and did not show any identifiable patterns, particularly after
the live bait effects were removed from the catch patterns. Therefore,
the effort redistribution model (11 percent increase in white marlin
discards) is probably more applicable in this case, indicating that
white marlin discards are problematic and will need to be closely
monitored. The prohibition of live bait in the Gulf will potentially
further reduce Atlantic-wide discard levels of blue marlin and white
marlin by approximately 3 percent and sailfish by 15 percent. Because
large coastal sharks are overfished, management efforts that reduce
discards (33.3 percent under the effort redistribution model) are
likely to be beneficial to stock recovery and, in that regard, meet the
objectives of the final rule.
Comment 13: The closures included in the proposed rule will not be
effective in rebuilding overfished HMS stocks unless huge areas of the
Atlantic Ocean outside the U.S. EEZ are also closed.
Response: National standard 9 requires FMPs to take actions to
minimize bycatch to the extent practicable. The management actions
included in the final rule have been formulated to meet the bycatch
reduction directive of national standard 9, consistent with the
requirements of other national standards for FMPs. To the extent that
reducing bycatch and bycatch mortality impacts juvenile and
reproductive HMS populations, the final actions may augment rebuilding
programs for the overfished HMS stocks. While NMFS agrees that
unilateral management action by the United States cannot rebuild
overfished HMS stocks, the United States has been a leader in
conservation of HMS resources and has taken many management actions
(e.g., the time/area closures) to show the international forum our
willingness to take the critical steps necessary to conserve these
stocks. U.S. leadership has been used as a primary negotiation tool at
ICCAT. The swordfish rebuilding program adopted by ICCAT in 1999 was
based in large part on the rebuilding plan outlined in the HMS FMP. To
the extent that the United States can use time/area closures and other
bycatch reduction management strategies to convince other ICCAT member
entities that bycatch can be minimized, the actions contained in the
final rule may have a significant impact on Atlantic-wide rebuilding of
overfished HMS stocks.
Comment 14: The entire Gulf of Mexico should be closed to pelagic
longline fishing.
Response: NMFS disagrees that closure of the entire Gulf of Mexico
to pelagic longline fishing is warranted. The proposed closure of the
western Gulf of Mexico was predicated on the relatively higher billfish
discards associated with the pelagic longline fishery operating in that
area. Additional information and analyses obtained by NMFS subsequent
to the publication of the DSEIS and proposed rule on December 15, 1999,
indicate that prohibition of live bait could reduce blue and white
marlin discards in the Gulf of Mexico by approximately 10 to 20
percent, and sailfish discards by 45 percent, depending upon the
analytical procedure used. Closure of the DeSoto Canyon area in the
northeastern Gulf of Mexico, although only a third the size of the
western Gulf of Mexico closure (32,800 square miles versus 96,500
square miles), will provide a greater benefit in the reduction of
swordfish discards (4 percent reduction Atlantic-wide versus a 3.1-
percent increase under the effort redistribution model) and will
prevent vessels displaced from the southeastern U.S. Atlantic coastal
closures from fishing in an area with an historically high rate of
swordfish discards. The cumulative benefits of the northeastern Gulf
closure and live bait prohibition meet the objectives of the final rule
by providing a reasonable alternative to reduce bycatch rates, while
minimizing economic and social impacts throughout the Gulf of Mexico.
Comment 15: NMFS has already closed too many areas to commercial
fishing. The proposed closures will eventually lead to total closure of
the
[[Page 47222]]
entire Atlantic region to commercial fishing.
Response: NMFS disagrees that the final rule closures will lead to
elimination of the commercial pelagic longline fishery. However, NMFS
agrees that use of time/area closures as a fishery management tool must
involve careful consideration of the impact of Agency action on all
components of both the commercial and recreational fisheries.
Implementation of practicable conservation measures that meet Magnuson-
Stevens Act directives is the overarching objective of the Agency. To
that end, NMFS has reduced the spatial and temporal constraints of the
proposed closures and included a gear modification (prohibition of live
bait) to help mitigate the economic and social concerns expected to
result from the actions originally proposed.
Comment 16: Closure of the DeSoto Canyon area, in addition to the
western Gulf closure, will displace vessels into the Atlantic and/or
Caribbean, which will negate the conservation measures associated with
the closures.
Response: NMFS disagrees because the effort redistribution model
assumes that effort is displaced randomly throughout the remaining open
areas. Therefore, the conservation benefits associated with the final
action closures account for movement of effort into the Caribbean, Mid-
Atlantic Bight, or any other open area. Further, since the final rule
does not close the western Gulf of Mexico, it is likely that the
limited fishing effort currently expended within the DeSoto Canyon
closure area (approximately one-third the size of the proposed Gulf
closure) will be dispersed largely within the Gulf of Mexico.
Comment 17: The proposed time/area closures are unjust,
unnecessary, and inequitable and, as such, will result in further
lawsuits against NMFS.
Response: National standard 9 of the Magnuson-Stevens Act requires
that NMFS take action to reduce bycatch to the extent practicable. The
use of time/area closures is a practicable means of reducing bycatch of
HMS resources while considering the economic concerns of participants
in the pelagic longline fishery who target these overfished,
international fishery resources. The IRFA, RIR, and other components of
the DSEIS clearly identified the significant economic, social, and
community impacts associated with the proposed time/area closures. NMFS
selected conservation measures in the final rule that meet the
directives of the Magnuson-Stevens Act, while being mindful of the
requirements of national standard 8 to minimize negative economic,
social, and community impacts, to the extent practicable.
Comment 18: The DeSoto Canyon closure is needed to protect a
swordfish nursery area, but it needs to be larger to be more effective.
Response: NMFS agrees that the DeSoto Canyon area is an area with
an historically high ratio of swordfish discarded to swordfish kept.
NMFS does not agree that additional closed areas are warranted at this
time. The analysis undertaken for the FSEIS included catch history from
the entire northeastern Gulf of Mexico, east of the Mississippi River,
and north of 26 deg. N. latitude (general location of the U.S. EEZ).
Although effort has been declining around DeSoto Canyon in recent
years, NMFS has selected this area for a closure to prevent further
effort from being expended in this area, either by displaced effort
from the Atlantic or by vessels shifting operations from other areas of
the Gulf of Mexico.
Comment 19: NMFS should have considered closures in the Caribbean,
including the EEZ around Puerto Rico and the U.S. Virgin Islands, to
protect spawning populations of swordfish and billfish.
Response: Closed areas in the Caribbean were considered. However,
as discussed in the DSEIS and FSEIS, closures were generally limited to
U.S. EEZ waters where they would have maximum impact on all pelagic
longline fishing effort. NMFS agrees that the Caribbean waters support
important HMS spawning and nursery areas as identified in the essential
fish habitat components of the HMS FMP and the Billfish FMP Amendment.
Pelagic longline effort in the Caribbean (fishing areas below 22 deg.
N. latitude) by U.S. flagged vessels is very effective in targeting
swordfish with relatively low discard rates (approximately 6.7 fish
kept to 1 discarded, as compared to an average 0.9 swordfish kept to 1
discarded in the DeSoto Canyon area). Conversely, the U.S. pelagic
longline effort in the Caribbean represents approximately 14 percent of
the total U.S. Atlantic-wide fishing effort, but accounts for over half
of the total blue marlin discards by U.S. pelagic longline vessels.
NMFS did not select a closure in the Caribbean area because of the
extensive range of the fishing effort in the Caribbean, which occurs
mainly in international waters. In addition, the configuration of the
EEZ around both Puerto Rico and the U.S. Virgin Islands would make
closures relatively ineffective.
Comment 20: NMFS should close the DeSoto Canyon area in addition
to, not in place of, the proposed western Gulf of Mexico closure.
Response: NMFS agrees that the DeSoto Canyon should be closed year-
round to reduce swordfish discards and prevent an increase in fishing
pressure in this area as a result of displaced effort from the East
Florida Coast closure. However, NMFS does not agree that the proposed
western Gulf of Mexico closure (March to September) is also warranted
at this time. The final rule includes a prohibition on the use of live
bait on pelagic longline gear in the Gulf of Mexico. Analysis of this
alternative indicates that prohibiting the use of live bait is likely
to be as effective in reducing sailfish discards as the western Gulf
closure, and about half as effective in reducing marlin discards.
However, in consideration of the magnitude of U.S. billfish discards
relative to Atlantic-wide levels and the extent of the economic,
social, and community impacts associated with the proposed western Gulf
closure, modifying fishing practices is a reasonable alternative that
effectively accomplishes the objective of reducing billfish bycatch, to
the extent practicable, while allowing fishing to continue in the
western Gulf of Mexico.
Comment 21: There is no reason for NMFS to close the DeSoto Canyon
area to pelagic longline gear.
Response: NMFS disagrees. The rationale for closing the DeSoto
Canyon area year-round to pelagic longline fishing is twofold. The
first is to prohibit fishing in an area with an historically low ratio
of swordfish kept to number of undersized swordfish discarded, which
over the period of 1993 to 1998 has averaged less than one swordfish
kept to one swordfish discarded. The second is to prevent further
increases in swordfish discards as a result of effort displacement into
this area from the Florida East Coast year-round closure.
Comment 22: The closures included in the proposed rule are more
effective than the measures contained in various bills being considered
in Congress.
Response: There are several bills currently before Congress. It is
difficult at this time to predict whether any of the bills will be
enacted and, if a bill is enacted, what measures it will contain. The
objectives of the legislative proposals are also different in some
respects from those of NMFS' final action.
Comment 23: Although the original proposed rule and the additional
DeSoto Canyon closed area may not be contrary to ICCAT recommendations,
they violate sections of the Magnuson-Stevens and Atlantic Tunas
Convention
[[Page 47223]]
Acts. The action is not being taken to comply with ICCAT
recommendations.
Response: NMFS disagrees that the proposed and final rules violate
the Magnuson-Stevens Act and ATCA. In fact, if NMFS failed to address
the issues developed in the final action, the Agency would be in
violation of Magnuson-Stevens Act directives related to national
standard 9. Further, the 1999 ICCAT recommendation established a dead
discard allowance that will require the United States to reduce
swordfish discards by 25 percent from 1998 levels (i.e., 443 mt to 320
mt) during the 2000 fishing year; any discards in excess of the dead
discard allowance will be taken off the following year's quota. The
dead discard allowance is subsequently reduced to 240 mt in 2001, 160
mt in 2002, and 0 mt by 2004. Thus, consistent with the ICCAT
recommendation, NMFS must take action to reduce swordfish dead
discards.
Gear Modifications
Comment 1: NMFS needs to do gear research specifically for the
Atlantic pelagic longline HMS fishery. Results from gear modification
research on other fisheries may not have the same effectiveness when
applied to the Atlantic pelagic longline fishery.
Response: NMFS agrees that research on gear modifications would be
most helpful if conducted in the Atlantic pelagic longline fishery. In
fact, several gear-based data collection and research programs have
been specifically directed on the Atlantic HMS pelagic longline
fisheries. One study is looking at whether gear modifications, such as
circle hooks, can reduce bycatch mortality and whether they are cost-
effective. Results are either inconclusive or too preliminary for
application in this final rule. Funding is very limited at this time,
so research results from other study areas are often applied to similar
fisheries (e.g., western Pacific tuna longline and Gulf of Mexico tuna
longline fishery).
Comment 2: NMFS should provide exempted fishing permits (EFPs) to
research vessels in closed areas to investigate the effectiveness of
gear modifications and fishing practices to reduce bycatch and
"incidental catch interaction with pelagic longline gear.
Response: NMFS agrees. Researchers must obtain a Scientific
Research Permit (SRP) or EFP from NMFS to conduct research in a closed
area with pelagic longline gear. A mechanism exists whereby NMFS can
grant an SRP/EFP in order to obtain data (50 CFR 600.745). If a
research team submits the required information, including a research
plan, NMFS would consider granting an SRP/EFP subject to the terms and
requirements of the existing regulations.
Comment 3: NMFS received comments both supporting and opposing a
regulation requiring the use of circle hooks in HMS fisheries. Comments
include the following: Require them on commercial and/or recreational
HMS vessels; do not require them; they are safer than regular hooks,
and better, cheaper, and more effective than the DSEIS indicated.
Response: NMFS agrees that circle hooks are a promising tool that
can be used in many hook and line fisheries to improve survival of
hooked fish and turtles that must be released. NMFS has funded a study,
now underway in the Azores, to evaluate the effectiveness of circle
hooks on sea turtle interactions and survival. If analyses indicate
that circle hooks are a cost-effective way to increase turtle survival,
NMFS may issue regulations requiring the use of such gear. NMFS seeks}
the cooperation of all fishermen to explore the use of circle hooks as
a means to reduce bycatch mortality, which is less expensive and may
have less economic impact than other measures (e.g., more extensive
time/area closures). Many recreational anglers have already switched to
circle hooks, particularly when fishing with dead bait, with several
recent articles in sportfishing magazines reporting on the value of
using circle hooks to reduce hooking-related mortality levels. In
certain fisheries, commercial fishermen have already adopted circle
hooks as well, as there is evidence of increased catch rates for some
target species (e.g., yellowfin tuna).
Comment 4: Some commenters noted that NMFS should prohibit the use
of live bait in the pelagic longline fishery. Conversely, other
commenters noted that, if NMFS prohibits live bait, fishermen will
switch from targeting tuna to targeting swordfish. Since many pelagic
longline fishermen operating in the Gulf of Mexico have incidental
swordfish permits, this might result in increased discards of
swordfish.
Response: NMFS agrees that live bait should be prohibited. Live
bait is used for 13 percent (logbook data) to 21 percent (observer
data) of all pelagic longline sets in the Gulf of Mexico. Logbook and
observer data indicate that blue and white marlin discards occur
approximately twice as frequently on hooks with live bait; sailfish are
discarded four to five times more frequently when live bait is used.
Live bait is generally used to target yellowfin tuna, although dead
bait is used on the majority of pelagic longline sets. Prohibiting live
bait may lead to additional use of squid or other dead bait, which may
be less effective than live bait in catching yellowfin tuna, but is a
reasonable alternative to a closure of the western Gulf of Mexico as a
means of reducing billfish bycatch. Some fishermen may switch from
targeting tuna (daytime fishery) to targeting swordfish with dead bait,
thereby increasing swordfish discards. However, fishing for swordfish
with pelagic longline gear generally takes place during night-time
hours and has an added expense and complexity with the use of light
sticks. In anticipation of fishermen targeting swordfish in the Gulf of
Mexico in reaction to this prohibition, NMFS has implemented a time/
area closure in a known swordfish nursery area in the eastern Gulf of
Mexico (DeSoto Canyon) in an attempt to avoid the increased catch rates
of small swordfish there. Further, if longline fishermen holding an
Incidental category swordfish permit experience increased swordfish
catch rates, NMFS may need to reconsider the incidental catch limit and
the allocation of swordfish quota to the directed fishery. Prohibiting
the use of live bait could be just as effective in reducing sailfish
discards (approximately 15 percent reduction from the Atlantic-wide
U.S. totals during 1995 through 1998) as the western Gulf closure.
Although the live bait prohibition would be somewhat less effective in
reducing marlin bycatch discards than the March to September area
closure (e.g., blue marlin: 3.3 percent vs. a 7.2-percent reduction
under the displaced effort model), it is less costly and is a practical
alternative to the western Gulf closure.
Comment 5: NMFS should implement other gear modifications (e.g.,
decreasing length of longline, decreasing soak time, and timing of
sets).
Response: NMFS agrees that gear modifications could be effective at
reducing bycatch. However, many of these measures are difficult to
enforce or could be circumvented by altering fishing patterns (e.g.,
additional sets made or increased soak time to offset a shorter
mainline), resulting in no bycatch reduction. NMFS continues to support
research projects regarding effectiveness of gear modifications.
Comment 6: NMFS should allow the U.S. Atlantic pelagic longline
fishery 1 year to voluntarily reduce bycatch with the use of self-
imposed gear modifications.
Response: As a result of a 1999 ICCAT recommendation setting
Atlantic-wide discard quotas, the United States must
[[Page 47224]]
immediately reduce swordfish discards during the 2000 fishing year to
320 mt. This will have to be a significant reduction from 1998, when a
total of 443 mt of swordfish discards from the North Atlantic were
reported by the United States. The ICCAT recommendation also
incrementally reduces the dead discard allowance to zero by the 2004
fishing year. Any dead discards over the annual allowance will be taken
off the following year's quota. Therefore, NMFS has determined that it
is necessary to initiate mandatory bycatch reduction measures at this
time.
Comment 7: NMFS should limit the soak times of pelagic longline
gear to reduce the number of dead discards.
Response: NMFS evaluated an alternative in the FSEIS that would
reduce pelagic longline soak time to 6 hours. The strategy would reduce
the amount of time that pelagic longline gear could be deployed and
thus reduce fishing effort (hours/hook) for each longline set. The
current range of soak time for pelagic longline gear is 5 to 13 hours.
This alternative was rejected based on the practicality of enforcement
and the likelihood that fishermen would make two sets during a day, or
otherwise extend a fishing trip to execute a similar level of effort/
trip. Since most billfish hit a longline hook during setting or
retrieving, requiring a measure that forced a greater frequency of
hooks moving through the water column could increase billfish discards.
However, limiting soak to reduce sea turtle takes will likely be
considered in developing alternatives to address concerns raised in the
BO.
Environmental Justice
Comment 1: The proposed closed areas would disproportionately
affect African-Americans in South Carolina, Vietnamese-Americans in the
states bordering the Gulf of Mexico, and low-income crew members.
Response: NMFS considered environmental justice concerns as
required by E.O. 12898 in selecting the preferred actions of the final
rule. By minimizing the size of the closure in the Gulf of Mexico
through prohibiting the use of live bait and by shortening the closed
season for the Charleston Bump area, NMFS expects that the economic and
social effects of the closures on minority groups and all other
components of the pelagic longline fishing community will be minimized
to the extent practicable.
Protected Species
Comment 1: NMFS should re-designate the longline fishery from a
Category I to a Category II fishery under the MMPA because the fishery
bycatch meets the criteria for a Category II designation.
Response: NMFS classifies fisheries on an annual basis.
Classification criteria consist of a two-tiered, stock-specific
approach that first addresses the total impact of all fisheries on each
marine mammal stock, and then addresses the impact of individual
fisheries on each stock. NMFS bases its classification of commercial
fisheries on a variety of different types of information. The best
source of information concerning the level of fishery-specific marine
mammal incidental serious injury and mortality is the fishery observer
program. If observer data are not available, NMFS may use fishermen's
reports submitted per the requirements of the Marine Mammal
uthorization Program since 1996 (or the Marine Mammal Exemption
Program from 1989 to 1995), stranding data, data from other monitoring
programs, and other sources of information. The Atlantic pelagic
longline fishery has been monitored with about 2 to 5 percent observer
coverage, in terms of sets observed, since 1992. The 1992-1997
estimated take was based on an analysis of the observed incidental take
and self-reported incidental take and effort data. The 1998 stock
assessment reports, which were used for the 1999 List of Fisheries,
included data which placed the pelagic longline fishery into Category
\I. NMFS will reevaluate categories in developing the 2001 List of
Fisheries. However, NMFS anticipates using serious injury data, which
would likely cause the pelagic longline fishery to remain in Category
I.
Comment 2: NMFS should be more concerned about fishermen than about
sea turtles.
Response: NMFS is concerned about achieving conservation benefits
of the final rule while at the same time minimizing expected economic
impacts on fishermen and related businesses, to the extent practicable.
However, NMFS also must be in compliance with the Endangered Species
Act, which requires NMFS to take appropriate actions to protect
endangered or threatened species (e.g., sea turtles). The final rule
includes reasonable actions that meet requirements of the Magnuson-
Stevens Act and ATCA (as it applies to swordfish discards) to reduce
bycatch and seek long-term rebuilding of overfished HMS stocks, while
balancing economic and social impacts. Even so, it is clear that the
final actions will have significant social and economic impacts on
various components of the pelagic longline communities. NMFS recognizes
those impacts and has noted possible sources of economic relief (see
section 8.0 of FSEIS).
Comment 3: The projected increase in turtle takes as a result of
the proposed closures (under the redistribution of effort model) is not
likely because many boats are not capable of redistributing their
longline effort to the Grand Banks.
Response: NMFS agrees that turtle bycatch rates may be over-
estimated by the effort redistribution model because estimation of
catch-per-unit-effort in the remaining open areas could be skewed if
species are concentrated in one area (such as sea turtles in the Grand
Banks or blue marlin in the Caribbean; see FSEIS for further
information), rather than randomly distributed over the entire open
area. Although fishing in the Grand Banks area requires a relatively
larger vessel than currently utilized in some of the closed areas
(e.g., east Florida coast) for practical and safety reasons, it is
ossible that some boats could commence fishing on the Grand Banks or
increase current effort in this area due to the closures in other
areas, resulting in potential increases in turtle interactions. It is
not known at this time how many vessels are expected to redistribute
their effort to areas and times where turtle interactions are highest,
but fishing activities will be continually monitored through the VMS
program, as well as through logbooks and on-board observers. The
anticipated takes for loggerheads and leatherback sea turtles for
pelagic longline gear established by the incidental take statement were
exceeded during 1999, as discussed in section 5.8 of the FSEIS. The
June 30, 2000 BO contained jeopardy findings for both loggerhead and
leatherback sea turtles. NMFS is initiating efforts to address this
issue, including possible regulatory and non-regulatory actions.
Dolphin/Wahoo Issue
Comment 1: Comments were received that the mahi ``loophole''
undermines the effectiveness of the HMS time/area rule; Vessels using
longline gear to target dolphin (mahi) should be prohibited from the
HMS pelagic longline closed areas; NMFS should continue to work with
the Councils to coordinate closed areas to reduce bycatch; If an
exception is made for the closed area, HMS longline fishermen may move
into the dolphin fishery.
Response: NMFS has notified the respective fishery management
councils of the jurisdictional issues presented by vessels fishing with
pelagic longline gear for species that are not directly managed by the
Secretary of Commerce (e.g., dolphin). The South Atlantic
[[Page 47225]]
Fishery Management Council has prepared a Draft Dolphin and Wahoo
Fishery Management Plan with a preferred alternative that would
prohibit the use of pelagic longline gear for dolphin and wahoo in
areas closed to such gear under HMS regulations. NMFS cannot predict
whether HMS longline fishermen will move into the dolphin fishery, but
it is unlikely that there would be a major shift in effort. Vessel
operators may not fish with pelagic longline gear in closed areas if
they hold an HMS permit; therefore, they would have to relinquish all
HMS permits in order to do so. NMFS does not expect that longline
fishermen would sell their swordfish and tuna permits in order to
target dolphin for a seasonal fishery of limited size and duration.
Comment 2: NMFS should implement emergency regulations until the
respective Councils can close the potential loophole posed by the
longline fishery for dolphin.
Response: If the level of fishing effort targeting dolphin
increases, it will most likely be due to factors other than the time/
area closures implemented for bycatch reduction in the tuna/swordfish
longline fisheries. It is unlikely that vessels affected by the HMS
closures would give up HMS permits specifically to conduct a dolphin
fishery. NMFS and the respective Councils can monitor effort, catch,
and bycatch of non-HMS permitted longline fishermen targeting dolphin
in the HMS closed areas and determine whether further action is
required. The South Atlantic Fishery Management Council has already
undertaken preliminary steps in preparing a proposed Dolphin and Wahoo
FMP that includes parallel closures.
Comment 3: No billfish or swordfish are caught in the mahi fishery;
NMFS should not shut down the mahi longline fishery; it has virtually
no discards and the stock is healthy; NMFS needs to analyze the dolphin
fishery more closely in evaluating the impacts of the pelagic longline
time/area closure.
Response: Recognizing the jurisdictional issues, NMFS has asked the
appropriate fishery management councils to examine management options
guiding the use of pelagic longline gear to target dolphin. In the
FSEIS, NMFS has included a more detailed discussion of the potential
bycatch issues in the pelagic longline fishery for dolphin. Logbook
reports from 1998 were examined for all sets made in the area from Key
West, FL, to Wilmington Beach, NC. It was not possible to identify
effort in the dolphin fishery with certainty, but sets were separated
into those targeting swordfish/tunas/sharks and those listing a target
as ``other.'' It was presumed that sets listing a target as ``other''
are predominantly targeting dolphin, and this was reflected in the
nearly tenfold higher catch per set of dolphin. While swordfish and
bluefin tuna discards were generally lower for the presumed dolphin
sets, bycatch of billfish, sharks and bigeye, albacore, yellowfin, and
skipjack (BAYS) tunas seems to be a concern. More specific information
on catch occurring when pelagic longlines are set to target dolphin
would be needed to confirm or refute the bycatch concerns. In the
interim, to facilitate enforcement and to take a precautionary
approach, NMFS has decided that HMS-permitted vessels should be
prohibited from setting all pelagic longline gear in the closed areas,
regardless of target species. It is possible that an operator of an
HMS-permitted vessel who wishes to target dolphin could apply for an
exempted fishing permit (EFP). If EFPs are issued, the data collected
(e.g., logbook or observer reports) can be used to determine whether a
dolphin fishery could be undertaken that would be consistent with the
bycatch reduction objectives of the HMS FMP. However, such
authorization for EFPs would have to be considered in consultation with
the councils having management authority for dolphin.
Redistribution of Effort
Comment 1: More pelagic longline fishermen will relocate to open
fishing areas than exit the fishery as a result of the time/area
closures.
Response: To estimate the range of potential ecological impacts of
the time/area closures, NMFS examined two scenarios for effort
reallocation: (1) all effort in the closed area is removed from the
system (worst-case alternative from the economic, social and community
standpoint) and (2) all effort is randomly moved to available open
areas (which may overestimate impact of effort if a species is not
relatively uniformly distributed throughout the area--see discussion of
sea turtle and blue marlin distribution in the FSEIS). Available
information is insufficient for NMFS to estimate the number of vessels
that may decide to discontinue fishing or to determine where the
remaining vessels will relocate. However, if total U.S. pelagic
longline effort is reduced by vessels leaving this fishery, the
estimates of the effectiveness of the time/area closures will be
underestimated.
Comment 2: The NMFS western Gulf of Mexico proposed closure would
force displacement of pelagic longline effort into known bycatch areas,
particularly the DeSoto Canyon area in the eastern Gulf of Mexico,
resulting in net losses in conservation effectiveness of the time/area
closures.
Response: NMFS agrees that this is a possibility. The areas
selected in the proposed rule were based on areas and times when
discard rates were relatively higher than those in other temporal/
spatial alternatives (``hot spots''). The overriding objective for the
proposed closure in the Gulf of Mexico was to reduce billfish discards.
A relatively higher discard-per-unit-effort was noted for marlin and
sailfish in the western Gulf of Mexico. In conducting the analyses for
the proposed rule, NMFS also recognized that there were discards of
swordfish in the eastern Gulf; however, there was a relatively lower
occurrence of billfish discards, particularly blue and white marlin, in
this eastern area. Therefore, in consideration of the fact that the
western Gulf area also had discards of undersized swordfish, NMFS
selected this area for closure in the proposed rule. Information that
became available subsequent to the preparation of the proposed rule and
consistent with public comments received has provided additional
insight into the differential bycatch of billfish from pelagic longline
sets using live bait, a fishing practice which has occurred mainly in
the western Gulf of Mexico. NMFS anticipated that this fishing
technique would be moved to the eastern Gulf of Mexico if the proposed
closure were implemented, resulting in an increase in billfish bycatch
in this area. The final rule incorporates a prohibition on the use of
live bait on pelagic longline gear which will reduce billfish bycatch
without the need for a closure in the western Gulf of Mexico. As a
result, NMFS re-examined other areas in the Gulf of Mexico and is
closing the DeSoto Canyon and a portion of the west Florida shelf based
on the historically high ratio of swordfish discards to swordfish kept
in these areas. Further, this action will prevent an expansion of
displaced fishing effort into this area following closures along the
southeastern U.S. Atlantic coast.
Comment 3: Displaced boats will re-flag to another country or sell
their vessel and gear to ICCAT non-member countries in the Caribbean,
or other areas, which will negate any gain in the reduction of billfish
and undersized swordfish discards by U.S. commercial pelagic longline
effort.
Response: It is possible that U.S. owners will decide to sell their
vessel(s) to citizens of one of the Caribbean countries. NMFS has
information that
[[Page 47226]]
indicates that many Caribbean nations (some which may not be members of
ICCAT) are interested in expanding their fishing fleets for HMS. NMFS
is involved with many United States initiatives regarding issues of
illegal, unregulated and unreported (IUU) fishing, including those
developed through ICCAT and FAO. The recent ICCAT restrictions on
swordfish imports from Honduras and Belize are evidence of this
international effort. ICCAT also continues to work with Caribbean
nations to discuss allocation criteria for these nations, as well as
adherence to ICCAT recommendations, which has been a source of concern.
Comment 4: The time/area closures will increase competition in the
shark fishery because pelagic longline vessels will re-rig to undertake
bottom longline fishing.
Response: NMFS disagrees. The shark fishery operates under a
limited access permit system. Most pelagic longline vessels have
qualified for limited access shark permits. The level of retention
allowable under an incidental permit is not sufficient to support
profitable operations focusing on shark resources. While some pelagic
longliners have directed permits and it is possible that some fishermen
could purchase a directed shark permit, the total number of directed
permits is capped, and the shark fishery operates under a quota system;
therefore total effort and relative competition between vessels should
remain unchanged.
Comment 5: NMFS will force pelagic longline fishermen with small
vessels to fish farther from shore, which could be unsafe during
inclement weather. NMFS should consider safety-at-sea implications of
the proposed closed areas.
Response: NMFS agrees that vessel safety is an important component
to be considered in developing reasonable management measures, as
required by national standard 10 of the Magnuson-Stevens Act. Some
pelagic longline vessels historically operating in the areas being
closed are not capable of safely fishing farther out to sea in the open
areas due to their size. However, the vast majority of pelagic longline
effort targeting swordfish and tuna occurs in deep waters, generally in
waters with depths in excess of 500 fathoms (3000 feet), requiring a
vessel of sufficient size to safely handle open ocean conditions. The
final rule closures should not adversely impact most of these vessels
in regard to sea-worthiness, particularly with the removal of the
western Gulf of Mexico closure and reducing the temporal restrictions
of the Charleston Bump closure. However, there is a fleet of small
pelagic longline vessels that fish the deep waters found relatively
close to shore along the east Florida coast. This area will be closed
year-round because of the magnitude of reported swordfish and billfish
discards. If these vessels are moved to open areas that require fishing
at a greater distance from shore, NMFS encourages vessel operators to
follow U.S. Coast Guard-approved operating procedures and to exercise
caution in determining the safe operating range for their sizes and
types of vessels.
Comment 6: Directed shark fishermen should be allowed to catch more
sharks since bycatch of large coastal sharks in the pelagic longline
fishery would be reduced with the time/area closures.
Response: NMFS disagrees. Shark resources in the United States are
either overfished (large coastal sharks), fully fished (small coastal)
or unknown (pelagic sharks). Each shark category has a set harvest
level that encompasses catch from all fishing sources. Time/area
closures may result in an increase in pelagic shark discards and
landings of approximately 8 and 4 percent, respectively, under complete
effort redistribution. Conversely, the number of large coastal sharks
discarded and landed from pelagic longline gear will likely decrease by
33 and 18 percent, respectively, which may increase the duration of the
large coastal shark fishing season. However, further increases in shark
quotas are not warranted at this time.
Comment 7: The effort redistribution model included in the DSEIS
predicts an increase in BAYS tuna landings, but the United States has
agreed to limit effort in the yellowfin tuna fishery under an ICCAT
agreement.
Response: While NMFS agrees that, under the effort redistribution
model, BAYS tuna landings may increase (mainly as a result of increased
yellowfin tuna catches), the ICCAT agreement limits U.S. yellowfin
effort to 1993 levels. The catch levels predicted by the effort
redistribution model are based on total effort redistribution and, as
such, are likely to be an over-estimation of actual effort and catches
under the final rule time/area closures. As a result of the HMS FMP, a
limited access system is now in place for the tuna pelagic longline
fishery, and a recreational limit of three yellowfin tuna per person
per trip was also implemented. Commercial yellowfin tuna landings in
1993 were 4,386 mt, while more recently (1996 to 1998), landings have
averaged approximately 3,525 mt. The nearly 10 percent increase in BAYS
landings predicted by the displaced effort model would increase average
annual landings to only 3,700 to 3,800 mt, without an overall increase
in effort.
Comment 8: Fishermen can and will fish in closed areas with other
types of fishing gear.
Response: In the FSEIS, NMFS analyzed the potential impacts of
fishermen changing target species through redistributing effort to
other fisheries in which the vessel already may be active, or pursuing
new fisheries by purchasing permits, as necessary. The South Atlantic
Fishery Management Council is currently holding public hearings on a
proposed dolphin/wahoo FMP that includes a preferred alternative that
would prohibit pelagic longline fishing for dolphin and wahoo within
the spatial and temporal constraints of closures for the HMS pelagic
longline fishery. This could reduce effort redistribution from HMS to
the dolphin and wahoo fisheries.
Comment 9: If Agency actions force fishermen to fish in areas with
high turtle interactions, then the Agency is responsible for any
increase in take, not fishermen.
Response: NMFS disagrees. The final time/area closures along the
southeastern U.S. Atlantic coast were temporally and spatially
reconfigured to mitigate, to the extent practicable, the impact of
effort redistribution on sea turtle interactions. Turtle bycatch rates
may be over-estimated by the effort redistribution model because
estimation of catch-per-unit-effort in the remaining open areas could
be skewed if species are concentrated more in one area (like sea
turtles in the Grand Banks) rather than randomly distributed over the
entire open area. NMFS will continue to monitor the fishery after
implementation of the final rule. As a result of the jeopardy findings
for loggerhead and leatherback sea turtles, NMFS will issue additional
regulations that may include further modifications to gear and/or
fishing methods, closed or limited fishing areas, and expanded
monitoring (see section 5.8 of the FSEIS).
Comment 10: The majority of directed swordfish and tuna pelagic
longline fishermen are not active in other commercial fisheries.
Response: NMFS disagrees. Of the 329 fishermen with swordfish
limited access permits who held valid permits as of May 9, 2000,
approximately half held only HMS limited access permits. The other
fishermen held a range of permits including king mackerel, Spanish
mackerel, golden crab, reef fish, red snapper (both Class 1 and Class 2
licences), rock shrimp, snapper-grouper, and spiny lobster. In
addition, some of
[[Page 47227]]
the vessel permit holders held permits in fisheries that are managed by
the Northeast Regional Office.
Comment 11: The closure will have unknown benefits because
reallocation of effort will change the catch composition.
Response: NMFS examined a range of impacts of effort reallocation,
including removal of all effort from closed areas to redistributing all
effort to available open areas. While the models used by NMFS provide
estimates of potential increases or decreases in catch and discards,
NMFS agrees that a full, quantitative assessment of effort reallocation
cannot be made until the closures are implemented and fishermen develop
new fishing patterns. However, the closures implemented through the
final rule will significantly reduce impacts on the level of discards
from the U.S. pelagic longline fishery in the U.S. EEZ, which was the
goal of the action. NMFS will monitor vessel activity through the use
of VMS, observers, logbooks, and dealer reports.
Comment 12: The time/area closures will force vessels to increase
effort and/or move into other South Atlantic fisheries for which they
hold permits. Boats will move into the bottom longline fishery and
catch grouper, snapper, and tilefish or shift to other pelagic longline
fisheries, like dolphin and wahoo, in either the impacted closed areas
or other locations along the Atlantic coast.
Response: NMFS agrees that some vessels will likely expend effort
in other fisheries. Although some pelagic longline fishermen who
homeport their vessels in the closed areas have other permits (e.g.,
coastal migratory pelagics, snapper-grouper, charter vessels), many
have only directed or incidental swordfish, shark and tuna permits.
Most of the southeastern fisheries require Federal permits, some of
which are issued under limited access programs. Limited access permits
may not be available, which may limit the ability of displaced pelagic
longline fishermen to target other species. Other vessels may move into
other activities consistent with their fishing experience (e.g.,
recreational charter fishing). The dolphin and wahoo fishery resources
are not under the direct management jurisdiction of the Secretary of
Commerce. However, the Agency agrees that some pelagic longline effort
may be directed toward dolphin and wahoo. The South Atlantic Fishery
Management Council has prepared a proposed dolphin/wahoo FMP that
includes a preferred alternative prohibiting pelagic longline fishing
for dolphin and wahoo within the spatial and temporal constraints of
closures for the HMS pelagic longline fishery. The FSEIS provides an
analysis of potential impacts of alternative fishing activity by
displaced HMS pelagic longline vessels.
Analysis of Ecological Benefits of Closures
Comment 1: The DSEIS indicated that the proposed time/area closures
would have a huge reduction in bluefin tuna discards, but reducing
bluefin tuna bycatch is not listed as an objective of the Agency
action.
Response: NMFS disagrees that reduction of bluefin tuna discards
was not included as an objective of the proposed Agency action, which
had four clear objectives: Maximize the reduction of finfish bycatch
(which includes bluefin tuna); minimize the reduction in the target
catch of swordfish and other species; ensure the incidental catch of
other species remains unchanged or is reduced; and optimize the
survival of released animals. Analysis of time/area closure
effectiveness used for the proposed rule encompassed all closures for
HMS, including the annual northeastern U.S. pelagic longline closure
during June developed specifically to reduce bluefin tuna discards that
was part of the final rule implementing the HMS FMP. Closures included
in the final rule are listed by species and area to clarify the
cumulative impacts for each spatial component. Bluefin tuna discards
increased by 11 percent when pelagic longline effort was randomly
redistributed throughout the operational range of the U.S. Atlantic
pelagic longline fishery as a result of the East Florida Coast and
Charleston Bump closures; however, when combined with the June closure
already in place, the net effect on bluefin tuna is a 39-percent
reduction in discards.
Comment 2: The Agency should have considered a more expansive
scientific information baseline for evaluation of potential closures,
including scientifically peer-reviewed literature prior to the 1995 to
1997 information included in the DSEIS, as well as more updated and/or
near real-time data sources (e.g., satellite data).
Response: In preparing the FSEIS, the Agency expanded the data
analyses to include logbook information from 1993 to 1998. These data
provide further support for the temporal and spatial components of the
time/area closures of the final rule. Historical scientific studies
describing movement behavior of HMS, as well as oceanographic studies
of current and water mass patterns were also reviewed in preparing the
FSEIS. Setting closures or other fishing activities based on near real-
time satellite information on water or current patterns may be
considered in future management actions, particularly in conjunction
with the communication capabilities of the VMS systems required for all
pelagic longline fishing vessels beginning September 1, 2000. Recent
scientific studies on the relationship between billfish discard rates
relative to use of live and dead bait on pelagic longline gear were
also used.
Comment 3: The evaluation of closed areas should be based on the
ratio of catch to bycatch instead of absolute numbers of bycatch.
Response: NMFS agrees that the ratio of catch to bycatch should be
used in evaluating which areas to close, but disagrees that the
absolute numbers of bycatch should not be considered. In developing the
final area closures, NMFS examined, where appropriate, the temporal and
spatial variations of the ratio of bycatch to target catch, the
absolute numbers of bycatch and target catch, and relative fishing
effort. For example, an area that has a high discard to number kept
ratio may be indicative of a problem area, depending upon the relative
volume of fishing effort that is currently or historically conducted in
the area. Conversely, an area that has a relatively high absolute
number of discards but a low ratio of discards to number of fish kept
would be evaluated based on the relative fishing effort in the area.
The analytical methods are fully described in the DSEIS, and clarified,
where appropriate, in the FSEIS.
Comment 4: A target bycatch threshold should be developed to allow
for a tracking of the success of Agency actions.
Response: NMFS disagrees. The development of the proposed and final
rules clearly follows a multispecies management approach, and' as such,
it is inappropriate to set target reductions for specific species
without considering the impact on the remaining portion of the catch
composition. For example, if the time/area closures were simply based
on reducing swordfish discards by a set percentage, this could
disproportionally increase the level of bycatch, bycatch mortality,
and/or incidental catch of other species. The four overarching
objectives discussed in the DSEIS and FSEIS guided the Agency
throughout the development of the proposed and final actions.
Comment 5: NMFS should investigate the effectiveness of the pelagic
longline closure in the Pacific Ocean to evaluate potential impacts of
closures along the U.S. Atlantic coast.
Response: NMFS agrees that all similar closures should be evaluated
to
[[Page 47228]]
determine potential biological, social, and economic impacts of final
Agency actions. The closure of nearly 1 million square miles of Pacific
Ocean near Hawaii to pelagic longline fishing vessels has been in
effect since December 23, 1999; therefore, information on the impacts
is limited at this time.
Comment 6: Observer data should be used to evaluate accuracy of the
logbook reports used in the NMFS time/area analyses.
Response: NMFS agrees that observer coverage is needed to ground-
truth information provided in the mandatory logbook program. The Draft
Technical Memorandum, included as part of the DSEIS, provides a
discussion of the limitations of logbook data and explains the
rationale for using these data. The Atlantic pelagic longline fishery
has been monitored with about 2 to 5 percent observer coverage, in
terms of sets observed since 1992, and is used to ground-truth the
mandatory logbook data, and to provide specific biological information
(e.g., tagging, obtaining tissue samples for genetic work). The
observer information was used in developing the prohibition on the use
of live bait.
Comment 7: The analyses of the time/area closures are flawed
because of the dependence upon mis-reported information in the
mandatory logbooks.
Response: NMFS disagrees that the analyses are flawed. While NMFS
recognizes that there are limitations and constraints in the use of
logbook information as discussed in the Draft Technical Memorandum and
HMS FMP, these data undergo thorough review by NMFS scientists and can
be used to identify catch trends and patterns over time. Also, if
logbooks under-report bycatch as indicated in public comment, then the
benefits of the time/area closures are even greater than predicted in
the FSEIS.
Comment 8: Use of percentages in the analyses make it difficult to
assess benefits of the time/area closures.
Response: To allow for valid analysis of temporal and spatial
variations in closure effectiveness on a suite of target species and
bycatch, it was necessary to have a common denominator for all
comparisons. The total U.S. Atlantic catch, by year and species, was
used for this purpose, and was provided in tabular form in the DSEIS.
The percentages provided in the analyses can easily be converted to
number by multiplying the percentage value by the appropriate annual
total (landings and discards were considered as separate groups). In
the FSEIS, NMFS further clarifies the use of percentages, numerical
values, and ratios of numbers caught to numbers discarded.
Comment 9: NMFS should not lump all BAYS together in the analysis
of the time/area closures. Each tuna species should be separately
analyzed, particularly for yellowfin tuna.
Response: NMFS agrees that it is important to separate out the
impact of the time/area closures on the various species of the BAYS
tuna complex. Atlantic-wide, yellowfin tuna and bigeye tuna represent
over 91 percent of the U.S. pelagic longline fleet catch of BAYS tunas
(YFT--70.4 percent and bigeye tuna--20.8 percent). In the Gulf of
Mexico, the 99.1 percent of the BAYS harvested from the proposed
western Gulf closed area consisted of yellowfin tuna; in the final rule
closure of DeSoto Canyon, yellowfin make up 98.4 percent of the BAYS
complex. The BAYS tunas in the closure of the southeastern U.S.
Atlantic coast consist of 89.5 percent yellowfin tuna and 7.5 percent
bigeye tuna. The potential changes in landings of yellowfin tuna,
bigeye tuna, the aggregate BAYS complex, and bluefin tuna are
summarized for each final action under the effort redistribution and no
effort redistribution models described in the FSEIS.
Comment 10: NMFS should summarize the impacts of the time/area
closures separately for the Gulf of Mexico and southeastern U.S.
Atlantic coastal closures.
Response: NMFS agrees. Ecological and economic impacts may be
better understood if summarized both separately and in combination,
and, to that end, this presentation approach is taken in the FSEIS.
Although the DSEIS combined the ecological impacts for the Gulf of
Mexico and southeastern U.S. Atlantic coastal closures under the
discussion of each alternative, the draft Technical Memorandum provided
results of the no effort redistribution and effort redistribution
models separately for each closure area.
Comment 11: NMFS should consider incorporating tagging data into
the time/area analysis procedures.
Response: NMFS agrees that information from tagging studies of
billfish, tunas, sharks, and other species released by recreational and
commercial fishermen provides valuable data on the range and movement
patterns of these species and, as such were included in the qualitative
procedures used to identify general areas for potential closure.
Comment 12: The proposed Agency action is focused only on reducing
swordfish discards, and does not consider the impacts on vessels.
Response: NMFS disagrees. The evaluation of the time/area closure
fishery management strategy in the DSEIS and FSEIS followed a multi-
species approach. Consistent with the objectives, patterns in the
discards, bycatch and incidental catches of billfish, sea turtles,
bluefin tuna, pelagic and large coastal sharks, and other overfished
HMS were used to define time/area closures. The areas selected for
closure in the final rule also seek to minimize the target catch of
swordfish, tuna, dolphin, and other species and, thus, minimize the
economic impacts on vessel owners. The evaluation of the impacts of the
closures included all components of the pelagic longline catch, as well
as those of dealers within the time/area closure locations.
Mitigation of Economic Impacts
Comment 1: NMFS should provide economic compensation for the
displaced vessels and dealers who are negatively impacted from the
closed areas (various vessel buyout schemes were suggested ranging from
recreational permit fees to having the remaining commercial fishermen
compensate those who go out of business; other schemes included
employing all displaced longline fishermen in fish hatcheries). While
vessel owners can sell their permits and receive some compensation,
dealers cannot. NMFS should provide resources for retraining or
education of displaced longline fishermen.
Response: NMFS recognizes that the time/area closures will
adversely affect many vessels and dealers, and that the ripple effects
of the closures will go beyond the immediate community of fishermen,
and affect fishing families, associated businesses, and the larger
coastal economy. NMFS also recognizes that the Magnuson-Stevens Act
requirements to rebuild overfished fisheries and reduce bycatch are
going to result in economic hardships--even closure of some businesses.
Once the stocks are rebuilt, it may still not be possible for all the
affected individuals to make a living because many fisheries are
currently overcapitalized. NMFS has made a concerted effort to identify
possible sources of economic relief for individuals and businesses
affected by the regulatory measures in this rule. Some government
agencies, such as the Small Business Administration, the Economic
Development Administration, the Farm Credit System, the U.S. Department
of Labor's Economic Dislocation and Worker Adjustment Assistance Act,
may provide fishing industry participants with loans, training for new
jobs, and/or grants for
[[Page 47229]]
economically stressed communities, and the Fisheries Finance Program
could support an industry-sponsored vessel buyback. A summary of the
types of buyback programs, loans, and government agencies that may be
able to help are listed in section 3 of the FSEIS.
Comment 2: NMFS needs to consider other alternatives that might
have fewer and lesser adverse economic impacts.
Response: In developing this final rule, NMFS considered and
adopted a variety of options that minimize bycatch and bycatch
mortality, achieve the same conservation goals, and mitigate the rule's
economic impact. These option's include smaller closed areas and/or
shorter closed periods than were proposed. In addition, the final rule
substitutes a prohibition on the use of live bait in the Gulf of Mexico
for the proposed closed area in the western Gulf. These alternatives
are likely to have less of an adverse economic impact on fishermen and
communities than the alternatives in the proposed rule.
Comment 3: NMFS received a number of comments regarding permit
buyouts, including the following: NMFS should buy out displaced
longline vessels; NMFS should not buy out displaced longline vessels;
thousands of businesses fail every day and those businesses do not ask
tax payers to buy them out; NMFS should destroy any longline vessels
that are bought out; and, without a buyout, many companies will go out
of business.
Response: This rule does not include a fishing capacity reduction
program (buyback program); however, NMFS may implement a buyback
program for this fishery if circumstances warrant. Any buyback program
will be implemented in accordance with the Magnuson-Stevens Act, NMFS
fishing capacity reduction regulations, and other applicable law. Under
section 312 of the Magnuson-Stevens Act, NMFS may implement buyback
programs that purchase fishing permits from permit holders or,
alternatively, it may implement buyback programs that restrict vessels
from participating in other fisheries by requiring that they be
scrapped or be subject to title restrictions. The buyback method
selected will depend on particular circumstances present when such
buyback program, if any, is implemented. Furthermore, NMFS has
concluded that it does have the authority to initiate and implement
buyback programs for fisheries under the direct management authority of
the Secretary of Commerce. Regulations implementing section 312,
published May 18, 2000 (65 FR 31444), provide that ``for a fishery
under the direct management authority of the Secretary, NMFS may
conduct a program on NMFS' own motion by fulfilling the requirements *
* * that reasonably apply to a program not initiated by a request.''
Because of the significant negative economic impacts expected with this
final rule, NMFS has made a concerted effort to identify possible
sources of economic relief for individuals and businesses affected by
regulatory measures in fishery management. A summary of the types of
buyback programs, loans, and government agencies that may be able to
help are listed in Section 3 of the FSEIS.
Comment 4: This proposed rule may cause Congress to abandon the
legislative buyout that has been under consideration.
Response: NMFS announced in the 1999 HMS FMP that the Agency was
committed to reducing bycatch and bycatch mortality, as required in the
Magnuson-Stevens Act, and would proceed with rulemaking to address
bycatch concerns. NMFS cannot predict what this rulemaking may have on
Congressional action.
Comment 5: NMFS should recognize that there are economic and
competitive disadvantages to businesses geographically close to the
proposed closed areas.
Response: NMFS agrees and is aware of the potentially significant
economic impacts to related businesses, not just to fishermen. However,
these areas were not chosen with respect to the impacts on a specific
region but rather to target ``hot spots'' for pelagic longline bycatch.
Because of the anticipated significant economic impacts, NMFS has
selected alternatives that minimize those impacts while still
maintaining conservation benefits similar to those in the proposed
rule. In the Gulf of Mexico, NMFS chose to prohibit live bait in lieu
of the large Western Gulf closure and has also implemented a smaller
closed area that focuses on swordfish bycatch reduction. Although this
area has a year-round closure, it is also located offshore so that
smaller fishing vessels may still be able to fish. Thus, businesses
near this closure may not be affected to the same extent as they would
be if the area extended to the coast. In addition, as discussed
earlier, NMFS has made a concerted effort to identify possible sources
of economic relief for individuals and businesses affected by
regulatory measures in fishery management.
Comment 6: NMFS should reconsider limiting the capacity of the
Atlantic pelagic longline fleet. NMFS should not implement further
regulations and instead should monitor the fishery while giving the
limited access program a chance to ``settle.'' Limited access was an
important first step that has not been given a chance to provide
benefits.
Response: NMFS agrees that limiting access to the fishery is an
important step. In July 1999, NMFS implemented limited access in the
pelagic longline fleet. While it is true that limiting access to this
fishery could provide an incentive for fishermen to reduce bycatch
because they have an investment in the future of the fishery, NMFS has
a mandate under the Magnuson-Stevens Act to minimize bycatch, to the
extent practicable. In addition, the limited access program in place
now was designed to reduce latent effort, not to reduce fishing effort.
As a result, there is still excess capacity in this fishery. For
example, of the 450 permit holders who qualified for a directed or
incidental swordfish limited access permit, only 208 reported landings
in the pelagic logbook in 1998. While other permit holders may be
reporting landings in other logbooks, NMFS believes that many permit
holders who do not fish regularly can still be bought out by fishermen
who may be more active. Therefore, as announced in the HMS FMP and the
2000 SAFE report and in addition to this rule to reduce bycatch and
bycatch mortality in the pelagic longline fishery, NMFS continues to
monitor the status of this fishery and, if necessary, will work with
the APs to consider additional steps to reduce fishing effort.
Comment 7: NMFS should make fishermen pay for an observer instead
of VMS.
Response: NMFS agrees that a user fee system for funding observer
coverage could be beneficial. However, a VMS program to track vessels
in areas where bycatch is a concern has some advantages in that it
costs less, is less intrusive, and has some vessel safety benefits.
NMFS will continue to examine means of applying user fees in fisheries
subject to observer coverage. In the interim, the Atlantic pelagic
longline fishery VMS requirement is effective beginning September 1,
2000.
Comment 8: Minimizing bycatch through large area closures will
result in greater overall economic benefits for all fishing industry
sectors.
Response: NMFS agrees that minimizing bycatch enhances rebuilding
of overfished stocks and, over the long term, should increase the
economic benefits for all fishing sectors. However, in the short term,
large area closures will force many small entities, such as fishermen
and dealers, out of business. NMFS has chosen to close the areas that
will provide the greatest
[[Page 47230]]
conservation and economic benefits in both the short and long terms.
Because of the jeopardy finding for loggerhead and leatherback sea
turtles, NMFS will propose additional measures to reduce the level of
turtle takes. This could include a closure of the Grand Banks for the
months of September through December, modifications in fishing methods,
gear modifications, and increased monitoring activities.
Comment 9: Every effort should be made to mitigate the economic
loss to commercial fishermen; however, given the current strong
economy, there is ample opportunity for those disadvantaged by the
closures to make a financial recovery.
Response: NMFS agrees that the economic loss to the commercial
fishermen must be minimized as long as the conservation goals can still
be achieved. Fishermen and others who lose their job or go out of
business as a result of this rule may be able to relocate to either a
different job altogether, or to a different job within the fishing
industry. To aid displaced individuals, NMFS identified possible
sources of economic relief for individuals and businesses affected by
regulatory measures in fishery management. A summary of the types of
loans and government agencies that may be able to help are listed in 3
of the FSEIS.
Comment 10: NMFS needs to consider actions to minimize economic
impacts associated with moving families to areas that remain open to
pelagic longline fishing.
Response: NMFS is aware that some families will need to move as a
result of these regulations and that the cost of moving may be high. To
examine more fully these impacts, NMFS published a Federal Register
document (65 FR 24440) on April 26, 2000, asking specifically for
comments on the impact of delaying the effective date to provide
sufficient time to relocate. The comments received are discussed here.
Also, as a result of these concerns, NMFS is delaying implementation of
some of these regulations for different lengths of time.
Comment 11: The DeSoto Canyon closure is keyed to reducing
swordfish discards and the analysis focuses on the social and economic
impacts on the swordfish longline fishermen and their associated
fishing communities. Other fisheries and fishing communities are likely
to be affected by this closures and should be considered in the
analysis.
Response: NMFS agrees that a variety of fisheries and fishing
communities should be considered in undertaking efforts to minimize
bycatch and bycatch mortality. As this final rule is directed at the
activities of only pelagic longline fishermen, the analyses focus on
the impacts to the pelagic longline fishery and communities. As NMFS
collects additional information on other fisheries (e.g., recreational,
bottom longline), NMFS may determine that additional rulemakings are
needed to reduce bycatch and bycatch mortality in those fisheries. If
NMFS undertakes such rulemakings, it will conduct analyses to determine
the impact of those rules.
Comment 12: Many comments were received about the effective date.
These comments included the following: NMFS should do the right thing
and insist that the closures not be reduced and that they be
implemented no later than 30 days after publication of the final rule
expected on August 1; The closures must be enacted immediately without
any delay; Fishermen and related businesses would need at least one
full year prior to implementation to move and resettle into other
regions; If NMFS is not going to provide compensation, NMFS needs to
delay implementation by at least 6 months to relocate entire
businesses, find a new docking facility, relocate staff, find a new
church, find new schools for children, and find a new house; The
swordfish rebuilding measures implemented last November at ICCAT are
risk-prone and have less than a 50-percent chance of rebuilding in 10
years. Given this, NMFS needs to implement these closures immediately
to reduce pressure on the stock and increase the chance of sticking to
the rebuilding schedule.
Response: NMFS agrees that fishermen and related businesses will
need time to relocate in response to the closures in this final rule.
NMFS disagrees that even a short delay of these regulations would
hinder rebuilding or cause irreparable harm to the resource. Any dead
swordfish discards that happen between the publication of the final
rule and implementation will be taken off the U.S. swordfish dead
discard allowance included in the rebuilding plan. Thus, NMFS has
decided to delay the implementation of the closures: 90 days for the
DeSoto Canyon area (November 1, 2000) and 180 days (February 1, 2001)
for the East Florida Coast closure, which coincides with the annual
date that the seasonal Charleston Bump closure begins. Thus, the
closures in the Southeast Atlantic would begin at the same time, making
the regulations less confusing and allow fishermen and related
businesses approximately 6 months to relocate if they so decide. The
implementation of the DeSoto Canyon closure is not delayed for as long,
because this closure is not as large an area as is the one the Atlantic
and it is further offshore. Thus, fishermen who have fished pelagic
longlines in the DeSoto Canyon area may be able to find alternative
fishing sites within the Gulf of Mexico without having to relocate the
home port of the vessel, and less time is necessary to prepare.
Comment 13: Unless NMFS undertook a detailed analysis of the
behavior of longline fishermen and processing industry to investigate
the impacts of delaying the effective date (costs, vessel's choice,
etc.), any decision to delay implementation would be essentially
arbitrary.
Response: NMFS disagrees. NMFS believes that commercial fishermen,
dealers, and processors provided enough information in their comments
on how long and why delayed implementation is needed for NMFS to make
an informed decision.
Comment 14: NMFS asked the wrong question in regard to delayed
implementation. The correct question is what approach would produce the
highest net economic benefits, not what are the short-term gains.
Response: NMFS believes that asking the commercial fishing industry
why they need delayed implementation and how long a delay it should be
provides information needed for NMFS to decide the optimal approach.
NMFS does not believe the highest net economic benefit would be
achieved if all of the commercial fishermen were asked to move within
30 days. Instead, NMFS believes it could be more beneficial to the
fishermen and the consumer if commercial industries were given time to
relocate while still giving them time to fish during this season.
Comment 15: NMFS' entire approach on this rulemaking is
fundamentally flawed because the Agency does not have the ability nor
the authority to initiate an effort buyout program for Atlantic HMS.
Response: NMFS disagrees. NMFS announced in the HMS FMP that it was
committed to reducing bycatch and bycatch mortality and would initiate
rulemaking for time/area closures based on comments received during
that rulemaking. NMFS has previously concluded (65 FR 31444, May 18,
2000) that section 312 of the Magnuson-Stevens Act provides
authorization for the Atlantic HMS buyout ``on NMFS' own motion by
fulfilling the requirements * * * that reasonably apply to a program
not initiated by a request.'' While NMFS recognizes that a buyout
program may provide some compensation for vessel owners, a
[[Page 47231]]
buyout program would not provide any compensation for other business
owners. Instead, NMFS has explored other ways of minimizing economic
impacts including smaller time/area closures, a prohibition on live
bait, and delayed implementation.
Comment 16: Closing the DeSoto Canyon in addition to the western
Gulf of Mexico would only increase any social and economic impacts to
vessels and their support and supplier community-based infrastructures.
Response: NMFS agrees that closing both the proposed Gulf B area
and the DeSoto Canyon would have even greater economic impacts than
closing either one alone. In addition, preliminary analyses indicate
that prohibiting live bait may have similar conservation benefits for
billfish as closing the western Gulf of Mexico. For this reason, NMFS
decided to close the DeSoto Canyon to minimize bycatch, particularly
small swordfish, and prohibit live bait to minimize billfish bycatch.
Comment 17: The Vietnamese Americans who have settled in states
bordering the Gulf of Mexico are especially vulnerable to social and
cultural disruption since they are dependent upon commercial fishing as
a traditional livelihood that provides stability.
Response: NMFS agrees that the Vietnamese American fishermen may be
affected by the social and economic impacts of these regulations.
However, NMFS mitigated impacts to the fishermen in these final
regulations by deciding against closing the Western Gulf of Mexico and
choosing to prohibit live bait. Thus, although these fishermen may need
to alter the current method of fishing, they should not need to
relocate.
Comment 18: NMFS failed to factor in the economic benefits from
decreased swordfish discards which would be added to the United States'
total allowable landings under the ICCAT swordfish rebuilding program
if swordfish discards are reduced below ICCAT targets.
Response: NMFS disagrees that the Agency failed to factor in the
economic benefits from decreased swordfish discards in relation to the
1999 ICCAT swordfish rebuilding program. NMFS recognizes that reducing
dead discards is crucial in order for U.S. fishermen to continue to
land the full swordfish quota allocated to the United States (see
section 7 of the FSEIS). For a full analysis of the social, economic,
and conservation benefits of the 1999 swordfish rebuilding program, see
the preamble to the proposed rule (64 FR 33519, December 15, 1999).
Comment 19: Adding the DeSoto Canyon area closure to the Western
Gulf of Mexico closure still would not save that many blue and white
marlins. NMFS must weigh that against the economic devastation the
closures will cause.
Response: NMFS agrees that economic impacts must be considered.
However, NMFS does not believe that Agency needs to ``balance'' the
economic impacts against the conservation benefits. The Magnuson-
Stevens Act mandates NMFS to rebuild overfished stocks, prevent
overfishing, and minimize bycatch and bycatch mortality for all stocks,
not just billfish. Recently, the U.S. Court of Appeals for the District
of Columbia Circuit ruled that the Magnuson-Stevens Act requires NMFS
to give priority to conservation benefits and to consider adverse
economic impacts if two alternatives achieve the same conservation
benefits. NMFS recognizes that some regulations that meet this mandate
will cause economic harm and has provided a summary of alternatives
that may help affected fishermen and communities in Section 3 of the
FSEIS. In addition, NMFS has analyzed many different areas and seasons
in order to determine whether time/area closures will be effective at
meeting the goals of this FSEIS, which time/area closures are the most
effective, and which time/area closures are effective but have the
least economic impacts. NMFS believes that the management measures
chosen will meet all of the goals of this action and minimize the
economic impacts, to the extent practicable.
Social and Economic Analyses
Comment 1: NMFS received comments on the extent of the impacts of
the proposed closed areas on the fishing fleet, including: One-third of
the fleet would go out of business; hundreds of coastal communities
would be negatively impacted; many fishermen would need to relocate;
and the closures fall disproportionately on minority and low-income
communities.
Response: Comments received on the proposed rule helped NMFS to
develop final regulations that would minimize the impacts of the
potential closed areas while yielding similar (or better) conservation
benefits. For example, many comments suggested that NMFS consider the
DeSoto Canyon area both instead of and in addition to the proposed
western Gulf closure (area Gulf B). NMFS found that the proposed Gulf B
closure could reduce the total gross revenues from the entire pelagic
longline fleet by 6.4 percent while the DeSoto Canyon closure might
reduce the total gross revenues from the entire fleet by 2.2 percent.
In addition, while analyses indicate the Gulf B closure could increase
swordfish discards by 3.9 percent, the DeSoto Canyon closure could
decrease swordfish discards by 4.1 percent. In the South Atlantic, the
proposed closure could reduce swordfish discards by 27.7 percent and
reduce total gross revenues to the fleet by 19.2 percent while the
final closure could reduce swordfish discards by 27.3 percent and
reduce total gross revenues for the fleet by only 9.0 percent.
Comment 2: The closures will have almost no adverse impact on any
group including commercial longline fishermen, as shown by NMFS'
analyses. The economic and biological benefits of these zone closures
far outstrip any commercial interests.
Response: NMFS disagrees that this rule will not have any adverse
impacts. NMFS' analyses, as supported by numerous comments received,
indicate that many fishermen, dealers, and related industries could go
out of business as a result of this rule. In addition, this rule will
have ripple effects throughout the entire fishing community, commercial
and recreational, and into other jobs and industries such as mechanics,
engineers, and fishing supply markets. The analyses conducted for this
rule indicate that the closed areas and times will have positive
biological impacts and significant negative economic impacts for some
businesses. NMFS has tried to achieve the conservation goal of
minimizing bycatch while minimizing the economic impacts.
Comment 3: Restrictions on commercial fishermen have economic
impact not just on dealers and wholesalers but also on local grocery
stores, welders, truckers, electrical technicians, mechanics, food
banks, and other people in all communities.
Response: NMFS agrees that this rule will have indirect impacts
beyond the immediate fishing industry. However, non-fishing industries
are already dependent on a range of businesses and industries. Although
some initial adverse impacts may occur, these indirectly affected
industries should be able to adjust through increased business in other
non-fishing sectors.
Comment 4: The economics of the pelagic longline fishery are
integrated with other fisheries from a dealer's perspective.
Response: NMFS agrees. In both the initial and final regulatory
flexibility analyses and the regulatory impact review, NMFS analyzed
the impact of
[[Page 47232]]
this rule on dealers. NMFS stated that, as a result of this rule, some
dealers may lose a substantial amount of fish previously supplied from
fishermen who have been issued a directed or incidental swordfish
permit. However, the actual amount of gross revenues dealers lose will
depend on the type of fish and the amount of fish dealers can obtain
from other fishermen and other fisheries. Although NMFS believes this
regulation will have a significant economic impact on HMS dealers who
are located in coastal ports adjacent to the closed areas, most dealers
are not as specialized as fishermen are, and they may be in a position
to develop alternative business opportunities (e.g., purchases of other
domestic fish products, import/export, value-added processing).
Comment 5: Closing the DeSoto canyon area will force some
businesses to close.
Response: NMFS agrees; assuming no effort redistribution, the
economic analyses for the DeSoto Canyon closure indicate that
approximately eight vessels (4 percent) would lose half of their gross
revenues and seven dealers who received fish from limited access permit
holders (5.6 percent) would lose business volume equal to about half of
the fish now handled. However, the economic impacts of the DeSoto
Canyon are smaller than the anticipated economic impacts of the
proposed Gulf B closure (12 vessels and 3 dealers losing half of their
business). In addition, the closure of the DeSoto Canyon area has
greater biological benefits for undersized swordfish than the proposed
Gulf B closure. Thus, although some vessels may still go out of
business as a result of this closure, the DeSoto Canyon area closure
minimizes the economic impacts for most individuals. Also, the DeSoto
Canyon area is located offshore, so smaller fishing vessels may still
be able to fish adjacent open areas without relocating. This is not
true of the Gulf B closure, which would have forced small vessels
owners who wished to continue to fish to relocate.
Comment 6: With the closures, pelagic longline fishermen are likely
to move into other areas. Many existing fishermen and countless others
working in those areas will be devastated by the concentration of
boats. NMFS has failed to analyze the impact of displaced fishermen on
communities in the open areas.
Response: NMFS agrees that with this rule, many pelagic longline
fishermen are likely to move into other areas. While this rule may
increase user conflicts in some areas, NMFS feels that this relocation
will increase the social and economic benefits in many communities by
increasing the level of economic activity in the area, including
employment. It is likely that some dealers and marinas in the open
areas or along the edges of the closed areas will see an increase in
business as fishermen move. Other support businesses near the open
areas will likely be similarly influenced. Also, communities in the
closed areas may have some economic relief if they transfer effort from
commercial fishing to recreational fishing. This may have the added
benefits of lessening user conflicts in other areas and enhancing the
recreational experience. In addition, due to the shorter Charleston
Bump closure and the smaller DeSoto Canyon closure further off the
coast, some fishermen in those areas may decide not to relocate.
Comment 7: Even though the quantity of swordfish available to
consumers may not decrease due to imports, the quality of fresh
swordfish will. Fresh fish should be available to everyone, not just to
those who have the economic means to get it themselves or live across a
line on a map. Even with a buyout, the level of economic activity will
be diminished and consumers will lose access to the freshest product.
Response: NMFS agrees that it is advantageous when fresh fish is
available to everyone, and future generations are considered in efforts
to develop sustainable fisheries. For that reason, NMFS is working to
rebuild overfished fisheries and to reduce bycatch and bycatch
mortality while minimizing the economic impacts with methods such as
time/area closures and gear modifications, without banning pelagic
longline gear. These methods will allow the fishery to continue to
provide as much fresh fish as possible.
Comment 8: This proposed rule should be considered as significant
under Executive Order (E.O.) 12866.
Response: Both NMFS and the Office of Management and Budget(OMB)
concluded that this rule does not meet the criteria for classification
as ``significant'' for purposes of E.O. 12866 review. However, NMFS has
prepared initial and final regulatory flexibility analyses as required
by the Regulatory Flexibility Act (RFA). It should be noted that a rule
could have a significant economic impact for purposes of the RFA
without the rule being considered significant under the criteria of
E.O. 12866.
Comment 9: The costs of the time/area closures have been
overestimated while the benefits have been underestimated. NMFS has
overestimated the man-hour cost of circle hooks. Many economic benefits
have been underestimated or omitted from the analysis of the economic
impact of the proposed closures.
Response: NMFS agrees that some of the costs have been
overestimated and some of the benefits have been underestimated. In
both the initial and final regulatory flexibility analyses and the
regulatory impact review, NMFS estimated the maximum economic impact of
each alternative and understated many of the benefits. This is
different than the analyses NMFS conducted to analyze the conservation
impacts. Those analyses estimated the conservation impacts under no
effort redistribution and effort redistribution models. The no effort
redistribution model allowed NMFS to estimate the maximum biological
benefits. The effort redistribution model allowed NMFS to estimate the
minimum biological benefits. For the economic analyses, NMFS assumed no
effort redistribution. This model allowed NMFS to estimate the maximum
economic impact of the final regulations. If NMFS had assumed effort
redistribution, the economic analyses would have indicated no change
from the status quo or, perhaps, an increase in gross revenues (see
section 7 of the FSEIS). While NMFS believes that the actual costs and
benefits of the regulations will be somewhere between status quo and
the costs described in the analyses, NMFS used the estimates from the
most conservative models to make its decisions. This means that, for
the biological estimates, NMFS used the effort redistribution model,
and for the economic estimates, NMFS used the no-effort redistribution
model. However, NMFS believes that many fishermen and related
industries will adapt to the regulations and will continue to work in
either the HMS fisheries or in others. However, because NMFS cannot
predict the behavior of individuals, NMFS cannot estimate the exact
cost or benefit any regulation will have. In addition, NMFS recognizes
that the ripple effect of the closures will impact other business that
provide goods and services to the pelagic longline fishery (e.g.,
tackle manufactures and suppliers; dock-side services, including ice,
bait, fuel, dockage, labor; and vessel manufacture and repair).
Although the final regulatory flexibility analysis and regulatory
impact review provide a more thorough discussion of economic factors
associated with the final Agency actions, NMFS does not have the
necessary detailed economic information to make a quantitative
[[Page 47233]]
assessment of the impacts on fishery support businesses.
Comment 10: The use of gross revenues to quantify impacts does not
provide an accurate assessment of the economic impacts of the proposed
rule; approximating loss changes by using average vessel costs would be
a more appropriate technique.
Response: NMFS agrees that using net revenues instead of gross
revenues would provide a more accurate assessment of the economic
impacts. However, as described in the HMS FMP, NMFS has only one
estimate of the average variable costs for vessels in the pelagic
longline fishery. Removing this estimate from every estimate of gross
revenues would be the same as removing a constant and would result in
the same estimates as those from gross revenues in terms of percent
change in net revenues. Thus, NMFS prefers, at this time, to discuss
the impact in regard to gross revenues and variable costs separately.
However, NMFS is working on expanding its collection of social and
economic data. NMFS is seeking approval to make the economic add-on to
the pelagic logbook data collection mandatory for selected vessels.
This information could be used in future rulemakings to estimate the
net revenues for each vessel.
Comment 11: The documents do not have enough data on people and the
lives this rule will affect. Because of this, the rule fails to fully
assess the social and economic impacts. NMFS needs to expand the social
impact assessment.
Response: The data used to examine the alternatives considered in
the rulemaking constitute the best available data. However, NMFS agrees
that additional data will be beneficial to future analyses. Therefore,
NMFS is increasing efforts to collect social and economic data for use
in future analyses, such as through the cost-earnings add-on to the
pelagic logbook and charter/headboat logbook, and social and economic
data surveys to be administered to tournament participants.
Comment 12: NMFS needs additional information regarding any social
and economic impacts from the proposed rule on the recreational fishing
industry.
Response: The proposed rule and FSEIS included a discussion of the
value of recreational HMS fisheries and the potential increases in
fishing success as a result of the closure of commercial pelagic
longline fishing along the U.S. Atlantic coast. Given the potential
benefits of the rule on the recreational fishing industry and the
comments received, NMFS expanded the discussion of the impacts on
recreational fishermen in the final rule documents.
Comment 13: If the closures aid in the recovery of billfish,
sharks, tunas, and swordfish, there will be tremendous economic gain in
the recreational fishing sector. Healthy fish populations produce more
economic benefit when they are used for recreational fishing first. The
economic benefits of recreational angling have been demonstrated many
times.
Response: NMFS agrees that the recreational fishing industry
provides many economic benefits and employment. The 1988 Billfish
Fishery Management Plan, which prohibited commercial vessels from
possessing billfish, recognizes the importance of the recreational
billfish fishery. Although increasing the recreational fishery benefits
and decreasing user conflicts are not an objective of the rule, NMFS
realizes that such benefits could occur as a result of the regulations.
Comment 14: NMFS needs to evaluate the economic impacts on
recreational fishermen in the mid- Atlantic Bight that may result from
increased interactions with displaced pelagic longline fishing
activity.
Response: NMFS agrees that displacement of pelagic longline effort
may have an impact on the remaining open areas in the Atlantic.
Accordingly, NMFS includes a discussion of additional management
measures specifically for the mid-Atlantic Bight to reduce potential
interactions with endangered/threatened species and with recreational
anglers. In addition, the reduced time/area closures will not only
minimize economic impacts on the commercial fishing industry, but also
reduce user conflicts that may have occurred under the proposed rule if
effort had been concentrated into smaller remaining open areas. For
example, NMFS reduced the closure along the Atlantic coast}
particularly the Charleston Bump area. This should help to minimize any
user conflicts that may have occurred as a result of the proposed rule
because some commercial fishermen in the Charleston Bump area may
decide not to relocate north. However, the goal of this regulation is
to reduce bycatch and bycatch mortality in the pelagic longline
fishery, consistent with the Magnuson-Stevens Act, not to reduce user
conflicts. NMFS will continue to monitor the impacts of this regulation
on the environment and fishing interests. If necessary, NMFS will work
with the APs and may issue additional regulations in order to reduce
user conflicts.
Comment 15: If one compares the 1997 summary economic statistics in
the IRFA with the DSEIS and the 1998 summary statistics in the
supplemental information about DeSoto Canyon, it appears that the
fishery is collapsing.
Response: NMFS disagrees. The level of participation in the fishery
may appear to have declined because the IRFA undertaken for the
proposed rule and the DSEIS used data from the northeast logbooks,
whereas the analysis for the supplemental DeSoto Canyon alternative did
not. The use of these northeast logbooks in the DeSoto Canyon analysis
would increase the number of vessels that reported landings in 1998;
however, most of these vessels reported few, if any, landings from
areas in or near the final time/area closures, and would not be
directly affected by the DeSoto closure. In addition, the average gross
revenue per permit holder increases by 21 percent when comparing the
1997 data with the 1998 data ($113,173 versus $137,126).
Comment 16: While smaller areas would minimize the economic impacts
on commercial fishermen, the District of Columbia Circuit Court of
Appeals recently held that conservation concerns outweigh concerns
about the potential economic impacts of fishery regulations.
Response: NMFS agrees that conservation concerns are important.
However, NMFS also recognizes that the proposed rule would have
significant economic impacts. For this reason, NMFS re-examined the
data and revised the final actions to achieve similar, or better,
conservation impacts while reducing the economic impacts. NMFS feels
that the suite of final actions (the revised time/area closures and the
live bait prohibition) will have greater conservation benefits than the
proposed regulations and serves to better mitigate economic impacts.
Comment 17: The proposal violates the Regulatory Flexibility Act
and would create social and economic devastation to fishing families
and communities.
Response: NMFS disagrees that the proposed or final regulations
violate the RFA. The RFA imposes an analytical requirement and
specifies procedures for assessing the impacts of proposed regulations
on small entities. Federal Agencies must determine the economic impact,
explore feasible alternatives for reducing the economic impact, and
explain the reason for the regulatory choice. Further, the RFA requires
that the Federal Agency obtain public comment on the analysis, and that
comments be addressed in a justification of the final action. NMFS
believes that the analyses in the
[[Page 47234]]
proposed rule and supplemental information meet all the requirements of
the RFA. NMFS recognizes that the final regulations will have large
impacts on many fishing families and communities but notes that the RFA
does not preclude an Agency from implementing regulations having such
impacts. NMFS chose final actions that meet the conservation goals and
minimized the economic impacts, to the extent practicable.
Comment 18: Regional market gluts, especially associated with bad
weather events and/or quota closures, should be expected to reduce ex-
vessel prices.
Response: NMFS agrees that the time/area closures may have some
impact on ex-vessel price particularly if closures or bad weather keep
commercial fishermen from fishing in the open areas. However, given the
extent of the remaining open areas in the Gulf and along the Atlantic
coast, NMFS does not believe that the time/area closures would change
the ex-vessel price significantly or cause significant market gluts.
Comment 19: NMFS should omit dealers who only import foreign fish
from the analysis; in reality, domestic dealers who primarily offload
and purchase ``trip-fish'' are few and far between and those in the
closed areas will be impacted far greater than NMFS has analyzed.
Response: NMFS agrees that dealers who purchase most of their fish
from vessels that now fish the designated closed areas will be greatly
affected by these regulations. However, neither the IRFA nor FRFA
considered imported fish. Instead, these analyses only considered fish
sold to dealers by swordfish limited access permit holders.
Comment 20: Pelagic longline vessels need to gross at least
$500,000 year to be profitable; NMFS' estimate for gross ex-vessel
revenues is too low.
Response: NMFS disagrees that the estimate for average ex-vessel
gross revenues used in the IRFA and FRFA is too low. A number of
studies performed on the voluntary economic add-on of the pelagic
logbook indicate that many fishermen are operating on the margin and
are not profitable. One study found that the average gross revenue per
vessel was $118,804. This is similar to the average of $113,173 used in
the IRFA and $137,126 used in the FRFA. Thus, while some vessels may
gross over $500,000, the majority of vessels do not.
Changes From the Proposed Rule
For reasons explained in the responses to comments listed in the
preceding text, NMFS has modified the proposed rule to balance bycatch
reduction objectives with the need to mitigate economic impacts. The
proposed western Gulf of Mexico closure has been changed to a Gulf-wide
prohibition on the use of live bait with pelagic longline gear. Also,
the year-round DeSoto Canyon closed area has been added to further
reduce dead discards of small swordfish. The proposed southeastern
United States closed area has been split into northern and southern
components: a seasonal (February 1- April 30) closure for the
Charleston Bump area and a year-round closure for the Florida East
Coast area.
To facilitate enforcement, several new definitions and prohibitions
were added, and the proposed descriptions of fishing gear and the
conditions for transit of the closed areas were revised. These
revisions prohibit fishing activity of any type, regardless of gear
actually deployed or target species, when a vessel issued an HMS permit
is in a closed area with pelagic longline gear on board. Additionally,
this final rule establishes a rebuttable presumption that fish on board
a vessel in a closed area were taken in the closed area with a pelagic
longline if that gear is on board. This imposes a burden on the vessel
operator to demonstrate that such fish were taken outside the closed
area (e.g., logbook entries, VMS signature).
Conclusions
In this final rule, NMFS prohibits pelagic longline fishing in
areas with relatively higher bycatch rates because this alternative
would best address the conservation and management objectives embodied
in the FMP as required by the Magnuson-Stevens Act and ICCAT
recommendations. Under the effort redistribution model, the final time/
area closures, in conjunction with the live bait prohibition, are
expected to reduce swordfish discards by 31 percent and sailfish
discards by 29 percent; blue marlin and white marlin discards could
increase by 3 percent and 7 percent, respectively. The final action
time/area closures in the DeSoto Canyon, East Florida Coast and
Charleston Bump could reduce the number of swordfish kept by 13 percent
and the number of dolphin kept by 18 percent, while BAYS tunas landings
would increase by nearly 10 percent.
The final area closures, together with the ban on live bait
longlining in the Gulf of Mexico, appropriately meet the objectives of
the Billfish and HMS FMPs and have the greatest likelihood of reducing
bycatch while minimizing, to the extent possible, adverse impacts on
fishing revenues and costs. Should future research indicate that
practicable gear modifications could further reduce bycatch of managed
HMS and/or protected resources, NMFS will consider those gear
modifications in conjunction with, or as an alternative to, time-area
closures. In addition, NMFS will address turtle bycatch in the pelagic
longline fishery in a separate rulemaking (see the following ESA
discussion). Future regulatory measures to reduce sea turtle bycatch
may involve additional area closures and/or further modifications to
fishing gear and methods in defined areas of high interaction rates.
NMFS notes that there are similarities and differences between the
time-area closures for pelagic longline gear contained in this final
rule and those contained in legislation pending before Congress. Should
any of the Congressional bills become law, NMFS will modify the
measures contained in this final rule as necessary.
Compliance Guide
Under the Small Business Regulatory Enforcement Fairness Act of
1996, Federal Agencies are required to provide small business entities
with a plain-language summary of how to comply with new regulations.
Copies of the compliance guide for this final rule are available from
Rebecca Lent (see ADDRESSES). To facilitate distribution, the
compliance guide is also included in this document:
Q1: I am a recreational fisherman. Will these regulations affect
me?
A: No. These regulations only affect commercial fishermen who use
pelagic longline gear in the Atlantic ocean and have a Federal permit
for Atlantic HMS.
Q2: I use pelagic longline gear. Will these regulations affect me?
A: Yes, if you have a Federal permit for Atlantic HMS. These
regulations will prohibit you from fishing with pelagic longline gear
in certain areas and times and from using live bait in the Gulf of
Mexico. The Gulf of Mexico is the area of the U.S. EEZ west of 83 deg.
W. longitude as defined in 50 CFR 600.105 (c).
Q3: What is longline gear?
A: A longline is fishing gear that is set horizontally, either
anchored, floating, or attached to a vessel, and that consists of a
mainline with three or more leaders (gangions) and hooks, whether
retrieved by hand or mechanical means.
Q4: What is pelagic longline gear?
A: Pelagic longline gear is defined as a longline that is suspended
by floats in the water column and that is not fixed to or in contact
with the ocean bottom. Your vessel has pelagic longline on board when:
1. A power-operated longline hauler,
2. A mainline,
3. High-flyers,
[[Page 47235]]
4. Floats capable of supporting the mainline, and
5. Leaders (gangions) with hooks are on board. Removal from the
vessel of any one of these five elements constitutes removal of pelagic
longline gear.
Q5: What are the areas where I can't fish using pelagic longline
gear?
A: As of November 1, 2000, you will not be able to fish at any time
using pelagic longline gear in the DeSoto Canyon area. This area,
composed of two squares offshore of the west coast of Florida, is
defined as the area within the following coordinates: 30 deg.00' N.
lat., 88 deg.00' W. long.; 30 deg.00' N. lat., 86 deg.00' W. long.;
28 deg.00' N. lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 84 deg.00'
W. long.; 26 deg.00' N. lat., 84 deg.00' W. long.; 26 deg.00' N. lat.,
86 deg.00' W. long.; 28 deg.00' N. lat., 86 deg.00' W. long.;
28 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00' N. lat., 88 deg.00'
W. long.
As of February 1, 2001, you will not be able to fish at any time
using pelagic longline gear in the East Florida Coast area. This area,
located along the east coast of Florida through Georgia, is defined as
the seaward area within the following coordinates: starting at
31 deg.00' N. lat. near Jekyll Island, Georgia, and proceeding due east
to 31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat.,
79 deg.00' W. long.; then proceeding along the boundary of the Economic
Exclusive Zone (EEZ) to 24 deg.00' N. lat., 79 deg.30' W. long.; then
connecting by straight lines the following coordinates in the order
stated: 24 deg.00' N. lat., 79 deg.30' W. long.; 24 deg.00' N. lat.,
81 deg.00' W. long.; 24 deg.00' N. lat., 81 deg.47' W. long.; then
proceeding due north to intersect the coast at 81 deg.47' W. long. near
Key West, Florida.
Also, as of February 1, 2001, you will not be able to fish using
pelagic longline gear from February through April each year in the
Charleston Bump area. This area, located off of North Carolina, is
defined as 34 deg.00' N. lat. near Wilmington Beach, North Carolina,
and proceeding due east to connect by straight lines the following
coordinates: 34 deg.00' N. lat., 76 deg.00' W. long.; 31 deg.00' N.
lat., 76 deg.00' W. long.; then proceeding due west to intersect the
coast at 31 deg.00' N. lat. near Jekyll Island, Georgia.
Q6: Are all three areas closed year-round?
A: No. The Charleston Bump area is closed only February 1 through
April 30 of each year. The other two areas, DeSoto Canyon and East
Florida Coast, are closed year-round.
Q7: Are there any gear or fishing method restrictions in this rule?
A: Yes. As of September 1, 2000, in the Gulf of Mexico, pelagic
longline fishermen are not allowed to use live bait. Setting up a live
well or maintaining live baitfish on board is prohibited. You may not
have a tank or well attached to an aeration or water circulation device
or have live baitfish if a pelagic longline is on board.
Q8: I am a recreational fisherman. Can I use live bait?
A: Yes. These regulations do not affect recreational fishermen.
Q9: I am a commercial fisherman but I don't use pelagic longline.
Will these regulations affect me?
A: As long as you do not have a pelagic longline on board your
vessel, you will be able to fish in the closed areas. See question
number 4 above for an explanation of the five elements of pelagic
longline gear.
Q10: I use pelagic longline gear but do not have a limited access
permit to fish for highly migratory species. Will these regulations
affect me?
A: These closed areas and gear restrictions apply only to
commercial fishermen who hold Federal permits for Atlantic HMS. While
unpermitted vessels may fish for other species with pelagic longline
gear in these areas, no tunas, swordfish, billfish, or sharks may be
retained on board those vessels. However, NMFS is working with the
Regional Councils to ensure consistency between regulations for all
pelagic longline fisheries.
Q11: Will I need to buy a vessel monitoring system (VMS)?
A: If you are a commercial fisherman with Federal permits for
Atlantic HMS and you have pelagic longline gear on board, you will need
to have a VMS operational by September 1, 2000.
Q12: Can I transit the closed areas or will I need to go around
them?
A: If you have pelagic longline gear on board and possess a Federal
Atlantic HMS permit, you will be allowed to transit the area if your
vessel has a working VMS unit, but you will not be allowed to fish with
any gear type. If you have pelagic longline gear on board, it is
assumed that any fish on board were caught with pelagic longline in the
closed area and you will have to demonstrate that the fish were
harvested outside the closed area. If you do not have pelagic longline
on board, you may fish in the area.
Q13: Is there a vessel buyback program associated with this rule?
A: No. This rule does not have a buyback program associated with
it. Legislation pending before Congress may address vessel buybacks.
Q14: I have the Federal swordfish, shark, and tuna limited access
permits. If I decide to leave the pelagic longline fishery, can I sell
my permits?
A: Yes. You can sell your limited access permits individually, as a
group, with the vessel, or without the vessel. If you have directed
permits, upgrading restrictions for horsepower, length overall, and net
and gross tonnage apply. For more information on transferring or
renewing limited access permits, please contact the NOAA Fisheries
Southeast region permit office in St. Petersburg, FL, at (727) 570-
5326.
Classification
This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq.
NMFS prepared an initial regulatory flexibility analysis for the
proposed rule. Based on comments received on the proposed rule and on
the IRFA (see Comments and Responses section), NMFS has amended the
final actions and has revised the regulatory flexibility analysis
accordingly. The final regulatory flexibility analysis FRFA assumes
that fishermen, during the time they would otherwise be pelagic
longline fishing in the designated areas would instead (1) make
longline sets in other areas, (2) participate in other commercial
fisheries, or (3) exit commercial fishing. As of March 23, 2000, 450
vessel owners had been issued for limited access permits for swordfish,
sharks, and the Atlantic tunas Longline category. With these three
permits, these 450 fishermen may use a pelagic longline to target
Atlantic swordfish (if they have a directed swordfish permit), Atlantic
tunas, or Atlantic sharks (if they have a directed shark permit). If
they have an incidental swordfish or incidental shark permit, these
fishermen could still target Atlantic tunas. Thus, the number of small
entities directly affected by this regulation consists of at least
these 450 fishermen. In addition, other sectors of the commercial
fishery might be affected by this regulation, including dealers,
processors, bait houses, and hook manufacturers. Using the weighout
slips submitted by fishermen reporting in the pelagic longline logbook,
NMFS estimates that 125 dealers received fish in 1998 from the 450
fishermen who qualified under the limited access program. NMFS also
received comments that the businesses associated with the recreational
and charter/headboat sectors of the HMS fisheries may also experience
economic impacts as a result of the commercial fishing effort
displacement which would result from the time/area closures. On
balance, though, these impacts are likely to be positive as gear
conflicts will be reduced in some areas and the availability of target
species will increase for the recreational sector.
[[Page 47236]]
Under this final action, a decrease in gross revenues will result
for some proportion of the affected small entities in the commercial
fishing sector. Under the final time/area closure actions, NMFS
estimates that, assuming the worst case scenario, the average annual
gross revenues per permit holder could decrease by nearly 5 percent to
about $130,000. Additionally, NMFS estimates that under the final
closure actions approximately 43 percent of the vessels that reported
landings in 1998 will experience at least a 5-percent decrease in gross
revenues and approximately 14 percent of the vessels will experience at
least a 50-percent decrease in gross revenues (i.e., be forced out of
business). The final rule closures will also have an economic impact on
dealers. About 15 percent of the permitted dealers could experience at
least a 5-percent reduction in the amount of fish handled due to the
DeSoto Canyon area closure, while 28 percent could experience at least
five percent reduction in the amount of fish handled due to the
Charleston Bump and East Florida Coast closures. However, to the extent
that landings of HMS are likely to increase in other areas, gains will
accrue to certain other vessel operators and dealers.
Based on comments received on the proposed rule and the IRFA, NMFS
has adopted a ban on live bait sets in lieu of the western Gulf of
Mexico closed area. While a prohibition on live bait may reduce the
landings of some pelagic longline fishermen, particularly yellowfin
tuna landings, it is not likely that this final action will have a
large impact on the gross revenues of any permit holder. More likely,
this final action may have an impact on the net revenues of some permit
holders since it will change the method of fishing. Requiring the use
of frozen bait might increase costs by up to 22 percent for fishermen
who currently use live bait. However, the use of dead bait might
decrease the time at sea (since a number of days are used up fishing
for live bait) and a decrease in the time spent at sea might decrease
the cost of fuel, groceries, or the costs associated with catching the
bait and keeping it alive. Thus, even though fishermen might need to
spend additional money up front in order to leave for a fishing trip,
this alternative might be beneficial if more sea time is available to
fish for target species. In any event, the economic impacts of a live
bait prohibition are expected to be less significant than under the
proposed closure.
The alternatives considered include the status quo, gear
modifications, and a ban on pelagic longline fishing by U.S. vessels in
the Atlantic Ocean. Although the status quo and gear modification
alternatives might have lesser economic impacts on participants in the
pelagic longline fishery, those alternatives either do not reduce
bycatch to the extent that NMFS expects to be achieved by the time-area
closures or present enforcement difficulties. While a complete ban on
longline fishing would reduce bycatch to a greater extent than the
time-area closures, the lost value of commercial seafood products and
the adverse impacts on fishery participants and fishing communities
would impose greater costs than the final action.
In addition to changes from the proposed rule, NMFS has decided to
delay implementation of some of the final regulations to help mitigate
some of the economic impacts fishermen may experience as a result of
the time/area closures and to give fishermen and related industries a
chance to relocate both business interests and families. The RIR/FRFA
provides further discussion of the economic effects of the final
actions and all the alternatives considered.
This final action will not impose any additional reporting or
recordkeeping requirements on vessel operators or dealers. Vessel
logbooks, dealer reports, observer notification, and VMS requirements
applicable to the HMS fisheries are all currently approved by the
Office of Management and Budget under existing regulations.
In preparing the draft HMS FMP and Billfish Amendment, NMFS
reinitiated formal consultation for all Highly Migratory Species
commercial fisheries on May 12, 1998, under section 7 of the ESA. In a
BO issued on April 23, 1999, NMFS concluded that operation of the
Atlantic pelagic longline fishery may adversely affect, but is not
likely to jeopardize, the continued existence of any endangered or
threatened species under NMFS' jurisdiction. Certain provisions of the
BO were incorporated into the final rule that implemented the FMPs and
consolidated the HMS regulations (e.g., moving after encounters and
limiting the mainline length). Other provisions of the BO required non-
regulatory programmatic actions (e.g., research and monitoring).
The Incidental Take Statement (ITS) of the April 23, 1999, BO
authorized the following levels of incidental take in the pelagic
longline fisheries: 690 leatherback sea turtles (Dermochelys coriacea),
entangled or hooked (annual estimated number) of which no more than 11
are observed hooked by ingestion or moribund when released; 1541
loggerhead sea turtles (Caretta caretta) entangled or hooked (annual
estimated number) of which no more than 23 may be hooked by ingestion
or observed moribund when released.
Observed take levels documented in 1999 indicate that, of all the
turtles taken, up to 50 loggerheads and 19 leatherbacks were observed
``hooked by ingestion'' or moribund upon release. However, only about 3
percent observer coverage was obtained and the anticipated take levels
were based on 5 percent observer coverage. Thus, the observed levels of
take would likely have been considerably higher had the required 5
percent coverage level been achieved. If the target observer coverage
level had been achieved, NMFS preliminarily projects that up to 83
loggerheads and 32 leatherbacks would have been observed ``hooked by
ingestion'' or moribund in 1999.
On November 19, 1999, NMFS reinitiated consultation under Section 7
of the ESA because observed take of loggerhead sea turtles by the
Atlantic pelagic longline fishery had exceeded levels anticipated in
the ITS. The consultation included this pelagic longline management
rulemaking because the time/area closures, if implemented, could affect
the overall interaction rates with sea turtles depending on fishermen's
responses in terms of shifting pelagic longline effort or fishing for
other species with other gear. The consultation also addressed the
shark drift gillnet fishery and the Atlantic tunas purse seine
fisheries; however, the following discussion addresses only issues in
the BO that apply specifically to the pelagic longline fishery which is
the subject of this final rule.
After reviewing the current status of the northern right whale, the
humpback, fin and sperm whales, and leatherback, loggerhead, green,
hawksbill, and Kemp's ridley sea turtles, the environmental baseline
for the action area, the effects of implementation of the proposed
Amendment to the Atlantic HMS FMP, the record of compliance with
requirements of previous BOs on HMS fisheries, and probable cumulative
effects, it is NMFS' BO that continued operation of the Atlantic
pelagic longline fishery is likely to jeopardize the continued
existence of loggerhead and leatherback sea turtles.
According to the BO, to avoid the likelihood of jeopardizing the
continued existence of loggerhead and leatherback sea turtles, NMFS
must implement fishery management measures to reduce the number of
these turtles that are incidentally captured, injured, killed by gear
associated with federally-managed
[[Page 47237]]
fisheries by at least 75 percent from current levels; that is, a
reduction in the number of loggerhead and leatherback sea turtles
captured, injured, or killed compared with a running average of the
number captured, injured, or killed during the period 1993 to 1999. The
reduction can be accomplished directly by gear modifications or it can
be accomplished indirectly by changing the method by which gear is
deployed.
Indirect modifications could include managing fisheries that use
harmful gear over time and space to eliminate the likelihood of
interactions between loggerhead sea turtles and gear (proportional to
the threat posed by specific gear); managing fisheries to eliminate the
likelihood that loggerhead sea turtles captured by gear would drown
before they can be released (such as keeping soak times to less than 30
to 45 minutes); excluding gear from areas that, based on available
data, appear to be important for loggerhead sea turtles; or, any
combination of these changes that reduce the number of loggerhead sea
turtles that are incidentally captured, injured, and killed by gear
associated with federally-managed fisheries by at least 75 percent from
current levels.
The BO identified the Reasonable and Prudent Alternatives (RPAs)
necessary to avoid jeopardy, and listed the Reasonable and Prudent
Measures (RPMs) and Terms and Conditions (TCs) necessary to authorized
continued takes. According to the BO, if NMFS cannot develop and
implement direct or indirect management measures that reduce the number
of loggerhead sea turtles that are incidentally captured, injured, and
killed by gear associated with federally managed fisheries by at least
75 percent from current levels, the following RPAs must be implemented:
modifications in fishing gear or method (e.g., requirement for
corrodible hooks or limiting fishing activity to certain temperature
and time of day regimes); or exclusion zones (e.g., temporally and
spatially restricting pelagic longline effort in the Grand Banks area);
and enhanced monitoring.
Section 9 of ESA and Federal regulations issued pursuant to section
4(d) of ESA prohibit the take of endangered and threatened species,
respectively, without special exemption. Incidental take is defined as
take that is incidental to, and not the purpose of, the carrying out of
an otherwise lawful activity. Under sections 7(b)(4) and 7(o)(2) of the
ESA, taking that is incidental to and not intended as part of the
Agency action is not a prohibited taking, provided that such taking is
in compliance with the RPMs and TCs of the ITS. Section 7(b)(4)(c) of
the ESA specifies that in order to provide an ITS for an endangered or
threatened species of marine mammal, the taking must be authorized
under section 101(a)(5) of the Marine Mammal Protection Act of 1972
(MMPA). Since no incidental take has been authorized under section
101(a)(5) of the MMPA, no statement on incidental take of endangered
whales is provided and no take is authorized.
Regarding anticipated incidental take of sea turtles in the pelagic
longline fishery for swordfish, tunas, and sharks, it is hoped that
this final rule to reduce bycatch in the pelagic longline fishery,
which may slightly increase take levels of sea turtles, will be more
than offset by the additional requirements to implement the RPMs
according to the terms and conditions of the ITS. The BO states that
the RPMs that are necessary and appropriate to minimize take of listed
species include an effective monitoring and reporting system to
document take, educating fishermen to reduce the potential for serious
injury or mortality of hooked turtles, and assessments of current data
to look for trends that may indicate management measures to reduce the
number of protected species interactions.
In order to be exempt from the take prohibitions of section 9 of
ESA, the June 30, 2000, BO requires NMFS to comply with certain terms
and conditions which would implement the RPMs described earlier an
outline required reporting/monitoring requirements. The terms and
conditions are non-discretionary and require: at-sea observer coverage;
information collection on the condition of sea turtles and marine
mammals when released; the presence and use of dipnets and cutting
devices on all longline vessels; review of turtle bycatch and release
mortality studies; financial support for genetic research to identify
sea turtle subpopulations; examination of the influence of gear and
fishing technique modifications such as light sticks and length of
mainline on protected species interaction rates.
NMFS will address the requirements of the BO in a subsequent
rulemaking and by certain non-regulatory actions. In the interim, this
final rule will not result in any irreversible and irretrievable
commitment of resources that will have the effect of foreclosing the
formulation or implementation of any RPAs necessary to reduce impacts
on protected species.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics, Treaties.
Dated: July 26, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 635, is
amended as follows:
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
1. The authority citation for part 635 continues to read as
follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
2. In Sec. 635.2, the definition of ``High-flyer'' is revised and
new definitions for ``Charleston Bump closed area,'' ``DeSoto Canyon
closed area,'' ``East Florida Coast closed area,'' ``Handline,''
``Longline,'' and ``Pelagic longline'' are added in alphabetical order
to read as follows:
Sec. 635.2 Definitions.
* * * * *
Charleston Bump closed area means the Atlantic Ocean area seaward
of the baseline from which the territorial sea is measured from a point
intersecting the U.S. coast at 34 deg.00' N. lat. near Wilmington
Beach, North Carolina, and proceeding due east to connect by straight
lines the following coordinates in the order stated: 34 deg.00' N.
lat., 76 deg.00' W. long.; 31 deg.00' N. lat., 76 deg.00' W. long.;
then proceeding due west to intersect the coast at 31 deg.00' N. lat.
near Jekyll Island, Georgia.
* * * * *
DeSoto Canyon closed area means the area within the Gulf of Mexico
bounded by straight lines connecting the following coordinates in the
order stated: 30 deg.00' N. lat., 88 deg.00' W. long.; 30 deg.00' N.
lat., 86 deg.00' W. long.; 28 deg.00' N. lat., 86 deg.00' W. long.;
28 deg.00' N. lat., 84 deg.00' W. long.; 26 deg.00' N. lat., 84 deg.00'
W. long.; 26 deg.00' N. lat., 86 deg.00' W. long.; 28 deg.00' N. lat.,
86 deg.00' W. long.; 28 deg.00' N. lat., 88 deg.00' W. long.;
30 deg.00' N. lat., 88 deg.00' W. long.
* * * * *
East Florida Coast closed area means the Atlantic Ocean area
seaward of the baseline from which the territorial sea is measured from
a point intersecting the U.S. coast at 31 deg.00' N. lat. near Jekyll
Island, Georgia, and proceeding due east to connect by straight lines
the following coordinates in the order
[[Page 47238]]
stated: 31 deg.00' N. lat., 78 deg.00' W. long.; 28 deg.17' N. lat.,
79 deg.00' W. long.; then proceeding along the boundary of the EEZ to
24 deg.00' N. lat., 79 deg.30' W. long.; then connecting by straight
lines the following coordinates in the order stated: 24 deg.00' N.
lat., 79 deg.30' W. long.; 24 deg.00' N. lat., 81 deg.00' W. long.;
24 deg.00' N. lat., 81 deg.47' W. long.; then proceeding due north to
intersect the coast at 81 deg.47' W. long. near Key West, Florida.
* * * * *
Handline means fishing gear that consists of a mainline to which no
more than two leaders (gangions) with hooks are attached, and that is
released and retrieved by hand, rather than by mechanical means.
High-flyer means a flag, radar reflector or radio beacon
transmitter, suitable for attachment to a longline to facilitate its
location and retrieval.
* * * * *
Longline means fishing gear that is set horizontally, either
anchored, floating, or attached to a vessel, and that consists of a
mainline or groundline with three or more leaders (gangions) and hooks,
whether retrieved by hand or mechanical means.
* * * * *
Pelagic longline means a longline that is suspended by floats in
the water column and that is not fixed to or in contact with the ocean
bottom.
* * * * *
3. In Sec. 635.4, paragraph (a)(10) is added, and paragraph (e)(4)
is removed, to read as follows:
Sec. 635.4 Permits and fees.
* * * * *
(a) * * *
(10) Permit condition. An owner issued a swordfish or shark permit
pursuant to this part must agree, as a condition of such permit, that
the vessel's swordfish or shark fishing, catch and gear are subject to
the requirements of this part during the period of validity of the
permit, without regard to whether such fishing occurs in the EEZ, or
outside the EEZ, and without regard to where such swordfish or shark,
or gear are possessed, taken or landed. However, when a vessel fishes
within the waters of a state that has more restrictive regulations on
swordfish or shark fishing, persons aboard the vessel must abide by the
state's more restrictive regulations.
* * * * *
4. In Sec. 635.21, paragraph (c) introductory paragraph and
paragraph (c)(2) are revised, and paragraph (c)(4) is added to read as
follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) Pelagic longlines. For purposes of this part, a vessel is
considered to have pelagic longline gear on board when a power-operated
longline hauler, a mainline, high-flyers, floats capable of supporting
the mainline, and leaders (gangions) with hooks are on board. Removal
of any one of these elements constitutes removal of pelagic longline
gear. If a vessel issued a permit under this part is in a closed area
designated under paragraph (c)(2) of this section with pelagic longline
gear on board, it is a rebuttable presumption that fish on board such
vessel were taken with pelagic longline gear in the closed area.
* * * * *
(2) If pelagic longline gear is on board a vessel issued a permit
under this part, persons aboard that vessel may not fish or deploy any
type of fishing gear in:
(i) The Northeastern United States closed area from June 1 through
June 30 each calendar year;
(ii) In the Charleston Bump closed area from February 1 through
April 30 each calendar year;
(iii) In the Florida East Coast closed area at any time beginning
at 12:01 a.m. on February 1, 2001; and,
(iv) In the DeSoto Canyon closed area at any time beginning at
12:01 a.m. on November 1, 2000.
* * * * *
(4) In the Gulf of Mexico: pelagic longline gear may not be fished
or deployed from a vessel issued a permit under this part with live
bait affixed to the hooks; and, a person aboard a vessel issued a
permit under this part that has pelagic longline gear on board shall
not maintain live baitfish in any tank or well on board the vessel and
shall not possess live baitfish, and shall not set up or attach an
aeration or water circulation device in or to any such tank or well.
For the purposes of this section, the Gulf of Mexico includes all
waters of the U.S. EEZ west and north of the boundary stipulated at 50
CFR 600.105(c).
* * * * *
5. In Sec. 635.69, paragraph (a) is revised by adding a second
sentence to read as follows:
Sec. 635.69 Vessel monitoring systems.
(a) Applicability. * * * A vessel is considered to have pelagic
longline gear on board for the purposes of this section, when gear as
specified at Sec. 635.21(c) is on board.
* * * * *
6. In Sec. 635.71, paragraphs (a)(30), (31), and (32) are added to
read as follows:
Sec. 635.71 Prohibitions.
* * * * *
(a) * * *
(30) Deploy or fish with a pelagic longline greater than the
maximum length authorized for any area specified at Sec. 635.21(c)(1).
(31) Deploy or fish with any fishing gear from a vessel with a
pelagic longline on board in any closed area during the time periods
specified at Sec. 635.21(c)(2).
(32) In the Gulf of Mexico, deploy or fish a pelagic longline with
live bait affixed to the hooks or to possess live bait, or set up a
well or tank to maintain live bait, aboard a vessel with pelagic
longline gear on board as specified at Sec. 635.21(c)(4).
* * * * *
[FR Doc. 00-19272 Filed 7-31-00; 8:45 am]
BILLING CODE 3510-22-F