[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23349-23358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11664]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 070717352-8886-02]
RIN 0648-AV65
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Atlantic Pelagic Longline Take Reduction Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: The National Marine Fisheries Service (NMFS) announces its
determination that the pelagic longline fishery has a high level of
mortality and serious injury across a number of marine mammal stocks,
and issues the final Atlantic Pelagic Longline Take Reduction Plan
(PLTRP) and implementing regulations to reduce serious injuries and
mortalities of pilot whales and Risso's dolphins in the Atlantic
pelagic longline fishery. The PLTRP is based on consensus
recommendations submitted by the Atlantic Pelagic Longline Take
Reduction Team (PLTRT). The PLTRP is intended to meet the statutory
mandates and requirements of the Marine Mammal Protection Act (MMPA)
through both regulatory and non-regulatory measures, including a
special research area, gear modifications, outreach material, observer
coverage, and captains' communications.
DATES: This final rule is effective June 18, 2009.
ADDRESSES: Copies of the Final Environmental Assessment (EA), the
Regulatory Impact Review (RIR), and the Final Regulatory Flexibility
Act (FRFA) analysis are available from Protected Resources Division,
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL
33701-5505. The PLTRP Compliance guide and Pelagic Longline Take
Reduction Team (PLTRT) meeting summaries may be obtained by writing to
Erin Fougeres, NMFS, Southeast Region, 263 13\th \Avenue South, St.
Petersburg, FL 33701-5505.
This final rule, its references, and background documents for the
PLTRP can be downloaded from the Take Reduction web site at http://www.nmfs.noaa.gov/pr/interactions/trt/pl-trt.htm and the NMFS Southeast
Regional Office website at http://sero.nmfs.noaa.gov/pr/pr.htm.
FOR FURTHER INFORMATION CONTACT: Erin Fougeres or Jennifer Lee, NMFS,
Southeast Region, 727-824-5312, or Kristy Long, NMFS, Office of
Protected Resources, 301-713-2322. Individuals who use
telecommunications devices for the deaf (TDD) may call the Federal
Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m.
eastern time, Monday through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
This final rule, which serves as the final PLTRP, implements
regulatory and non-regulatory measures recommended by the PLTRT to
satisfy the requirements of the MMPA. Details concerning the
justification for and development of this PLTRP were provided in the
preamble to the proposed rule (73 FR 35623, June 24, 2008) and are not
repeated here. The proposed rule provided a 90-day public comment
period to provide feedback to NMFS via electronic submission,
postmarked mail, or facsimile. In addition, one PLTRT meeting was
conducted during the 90 day public comment period. Based on comments
received (see ``Comments and Responses'' section), NMFS made minor
changes to the proposed rule. Changes between the proposed and final
rule are noted in the ``Changes from the Proposed Rule'' section.
Distribution, Stock Structure, and Abundance of Pilot Whales
In the mid-Atlantic bight (MAB), (i.e., the area bounded by
straight lines connecting the mid-Atlantic states' internal waters and
extending to 71 W. long. between 35[deg] N. lat. and 43[deg] N. lat),
the Atlantic pelagic longline fishery interacts with two species of
pilot whales. Long-finned pilot whales are distributed worldwide in
cold temperate waters in both the Northern (North Atlantic) and
Southern Hemispheres. In the North Atlantic, the species is broadly
distributed and thought to occur from 40[deg] to 75[deg] N. lat. in the
eastern North Atlantic and from 35[deg] to 65[deg] N. lat. in the
western North Atlantic (Abend and Smith, 1999). Short-finned pilot
whales are also distributed worldwide in warm temperate and tropical
waters. In U.S. Atlantic waters,
[[Page 23350]]
this species is found in the Gulf of Mexico (GOM) and in the western
North Atlantic as far north as the central MAB. Both species tend to
favor the continental shelf break and slope, as well as other areas of
high relief, but are also present offshore in the pelagic environment.
In the western North Atlantic, they may be associated with the north
wall of the Gulf Stream and with thermal fronts (Waring et al., 1992).
The two species are difficult to distinguish during visual
abundance surveys, and therefore, in many cases, reference is made to
the combined species, Globicephala spp. Due to this difficulty in
species identification, the species' boundaries for short-finned and
long-finned pilot whales in the western North Atlantic have not been
clearly defined. However, their distributions are thought to overlap
along the U.S. mid-Atlantic coast between 35[deg] and 39[deg] N. lat.
(Payne and Heinemann, 1993; Bernard and Reilly, 1999). The greatest
area of overlap in distribution of the two species seems confined to an
area along the shelf edge between 38[deg] and 40[deg] N. lat. in the
MAB, where long-finned pilot whales are present in winter and summer
and short-finned pilot whales are present in at least the summer
(Waring et al., 2008).
Stock structure is not well known for long-finned or short-finned
pilot whales in the North Atlantic. Indirect and direct studies on
long-finned pilot whales indicate that there is some degree of stock
differentiation within the North Atlantic (Mercer, 1975; Bloch and
Lastein, 1993; Abend and Smith, 1995; Abend and Smith, 1999; Fullard et
al., 2000). For short-finned pilot whales, there is no available
information on whether the North Atlantic stock is subdivided into
smaller stocks.
The total number of pilot whales off the eastern U.S. and Canadian
Atlantic coast is unknown, although estimates from particular regions
of their habitat (e.g., continental slope) exist for select time
periods (see Waring et al., 2006 for a complete summary). Observers at
sea cannot reliably distinguish long- and short-finned pilot whales
visually. As a result, sightings of pilot whales are not identified to
species and resulting survey estimates are considered joint estimates
for both species. The best available estimate for Globicephala spp. in
the U.S. Exclusive Economic Zone (EEZ) is the sum of the estimates from
the summer 2004 U.S. Atlantic surveys, 31,139 (Coefficient of
Variation, or CV=0.27), where the estimate from the northern U.S.
Atlantic is 15,728 (CV=0.34), and from the southern U.S. Atlantic is
15,411 (CV=0.43) (Waring et al., 2008). This joint estimate is the most
recent available, and these surveys include the most complete coverage
of the species' habitats (although the PLTRT recognized that this
estimate was limited to the U.S. EEZ). For Globicephala spp., the
minimum population estimate, which accounts for uncertainty in the best
estimate (Wade and Angliss, 1997), is 24,866.
Distribution, Stock Structure, and Abundance of Risso's Dolphins
Risso's dolphins occur worldwide in warm temperate and tropical
waters roughly between 60[deg] N. and 60[deg] S. lat., and records of
the species in the western North Atlantic range from Greenland south,
including the Gulf of Mexico (Kruse et al., 1999). In the U.S. Atlantic
EEZ, the species is most commonly seen in the MAB shelf edge year round
and is rarely seen in the Gulf of Maine (Waring et al., 2004). Risso's
dolphins are pelagic, preferring waters along the continental shelf
edge and deeper, as well as areas of submerged relief such as seamounts
and canyons (Kruse et al., 1999). There is no information available on
population structure for this species.
Abundance estimates for Risso's dolphins off the U.S. or Canadian
Atlantic coast are unknown, although eight estimates from particular
regions of their habitat exist for select time periods (Waring et al.,
2006). Sightings of Risso's dolphins are almost exclusively in the
continental shelf edge and continental slope areas. The best available
abundance estimate for Risso's dolphins in the U.S. EEZ is the sum of
the estimates from the summer 2004 U.S. Atlantic surveys, 20,479
(CV=0.59), where the estimate from the northern U.S. Atlantic is 15,053
(CV=0.78), and from the southern U.S. Atlantic is 5,426 (CV=0.540)
(Waring et al., 2008). This joint estimate is the most recent
available, and the surveys have the most complete coverage of the
species' habitat (although the PLTRT recognized that this estimate was
limited to the U.S. EEZ). The minimum population estimate for the
western North Atlantic Risso's dolphin, which accounts for uncertainty
in the best estimate (Wade and Angliss, 1997), is 12,920.
Potential Biological Removal, Serious Injury and Mortality Estimates,
and Take Reduction Plan Determination
The Potential Biological Removal (PBR) level is the maximum number
of animals, not including natural mortalities, that can be removed
annually from a stock, while allowing that stock to reach or maintain
its optimum sustainable population level. Specifically, it is defined
as the product of minimum population size (in this case, of the portion
of the stock surveyed within the U.S. EEZ), one-half the maximum
productivity rate, and a recovery factor (MMPA Sec. 3(20), 16 U.S.C.
1362). The maximum productivity rate for both pilot whales and Risso's
dolphin is 0.04, the default value for cetaceans (Barlow et al., 1995).
The recovery factor, which provides greater protection for endangered,
depleted, or threatened stocks, or stocks of unknown status relative to
optimum sustainable population (OSP), is 0.48 for both species because
the CV of the average mortality estimate is between 0.3 and 0.6 (Wade
and Angliss, 1997), and because both stocks are of unknown status. The
PBR for both species of western North Atlantic pilot whales combined
(i.e., Globicephala spp.) is 249, and the PBR for the western North
Atlantic stock of Risso's dolphin is 129 (Waring et al., 2008).
The 2007 Marine Mammal Stock Assessment Report (SAR) reported an
average combined annual serious injury and mortality incidental to
pelagic longline fishing of 86 pilot whales (CV=0.16) and 34 Risso's
dolphins (CV=0.32), based on the years 2001-2005 (Waring et al., 2008).
However, more recent estimates (Fairfield-Walsh and Garrison, 2007;
Garrison, 2007) bring the 5-year average annual combined serious injury
and mortality for pilot whales to 109 animals (CV=0.194, years 2002-
2006) and for Risso's dolphins to 20 animals (CV=0.381, years 2002-
2006). Based on this information, serious injury and mortality of pilot
whales and Risso's dolphins in the Atlantic pelagic longline fishery is
below PBR, but exceeds the insignificance threshold (i.e., 10% of PBR
)(69 FR 43338, July 20, 2004). Furthermore, NMFS has determined that
there is a high level of serious injury and mortality in the Atlantic
pelagic longline fishery across a number of marine mammal stocks,
warranting the development and implementation of a take reduction plan
for both pilot whale and Risso's dolphin stocks.
Components of the Final PLTRP
The final PLTRP takes a stepwise, adaptive management approach to
achieve the long-term goal of reducing serious injuries and mortalities
of pilot whales and Risso's dolphins in the Atlantic pelagic longline
fishery to insignificant levels approaching a zero mortality and
serious injury rate within five years of implementation. A series of
management measures, implemented by this final rule, are designed to
make an
[[Page 23351]]
initial significant contribution to reducing serious injury and
mortality. The final PLTRP also includes research recommendations for
better understanding how pilot whales and Risso's dolphins interact
with longline gear, as well as assessing current and potential new
management measures. The PLTRT agreed to evaluate the success of the
final PLTRP at periodic intervals over the next five years and to
consider amending the PLTRP based on the results of ongoing monitoring,
research, and evaluation.
The PLTRT recommended a suite of management strategies to reduce
mortality and serious injury of pilot whales and Risso's dolphins in
the Atlantic pelagic longline fishery. The complete list of these
recommendations can be found in Sections VIII and IX of the Draft PLTRP
(PLTRT, 2006). This final rule addresses both the regulatory and non-
regulatory measures recommended by the PLTRT. NMFS incorporated nearly
all of the PLTRT's consensus recommendations from the Draft PLTRP into
the proposed and final PLTRP, with only minor modifications.
One consensus recommendation is not implemented through this final
rule, but is implemented under a different authority. The PLTRT
recommended NMFS develop and implement a mandatory certification
program to educate owners and operators of pelagic longline vessels
about ways to reduce serious injury and mortality of marine mammal
bycatch. NMFS is implementing the PLTRT's recommendation using NMFS'
existing regulatory authority at 50 CFR 635.8, Workshops. On October 2,
2006, NMFS published the Consolidated Highly Migratory Species (HMS)
Fishery Management Plan (FMP) and the associated final rule (71 FR
58058), which requires all HMS longline fishermen to attend a NMFS
workshop and earn certification in mitigation, handling, and release
techniques for sea turtles, sea birds, and other protected species.
Since 2007, NMFS has incorporated education on careful handling and
release techniques for marine mammals, current regulations and
guidelines related to marine mammal bycatch that apply to the fishery,
and an explanation of the purpose and justification of those
regulations and guidelines into these workshops. NMFS will expand the
content of the workshops as appropriate to meet the needs of the PLTRP.
Regulatory Measures
NMFS issues the following three regulatory measures: (1) a Cape
Hatteras Special Research Area (CHSRA), with specific observer and
research participation requirements for fishermen operating in that
area; (2) a 20-nm (37.04-km) upper limit on mainline length for all
pelagic longline sets within the MAB; and (3) an informational placard
that must be displayed in the wheelhouse and on the working deck of all
active pelagic longline vessels in the Atlantic fishery.
Cape Hatteras Special Research Area
As recommended by the PLTRT, NMFS is designating a special research
area offshore of Cape Hatteras (hereafter referred to as the CHSRA)
with specific observer and research participation requirements for
fishermen operating in that area at any time during the year. The CHSRA
includes all waters inside and including the rectangular boundary
described by the following coordinates: 35[deg] N. lat., 75[deg] W.
long., 36[deg] 25' N. lat., and 74[deg] 35' W. long (Figure 1). The
CHSRA encompasses a 5,927 sq km (2,288 sq mile) region that over the
past five years has exhibited both high fishing effort and high pilot
whale bycatch rates. NMFS delineated the area to encompass the vast
majority of the observed marine mammal interactions and to exclude the
area where inshore longline vessels target yellowfin tuna and coastal
sharks, since the inshore area had low observed marine mammal
interaction rates.
Vessels in the CHSRA are required to carry observers when
requested. Vessels deploying or fishing with pelagic longline gear in
the CHSRA must call the NMFS Southeast Fisheries Science Center (SEFSC)
at least 48 hours, but no more than 96 hours, prior to embarking on the
trip. This is in addition to any existing selection and notification
requirements for observer coverage by the Pelagic Observer Program
(POP). If, upon calling in, the vessel is informed by the NMFS SEFSC
that no observer will be assigned and that no special research
requirements will apply for that trip, then the vessel need not wait
until their stated date and time of departure and may depart on their
fishing trip immediately. If a vessel is assigned an observer, the
vessel must take the observer during that trip; if the vessel refuses
to take the observer, the vessel is prohibited from deploying or
fishing with pelagic longline gear in the CHSRA for that fishing trip.
No waivers will be granted to vessels fishing in the CHSRA that do not
meet observer safety requirements. By not allowing exemptions for
observer coverage within the CHSRA, NMFS will be able to improve
observer data and bycatch estimates within the CHSRA.
In addition to the requirement for carrying observers, NMFS is also
requiring vessels in the CHSRA to participate in research. This will
enable focused research on pilot whale interactions with the pelagic
longline fishery, thus contributing to achieving the objectives of the
PLTRP. Obtaining better data for characterizing fishery interactions is
a high priority. The PLTRT was limited in its ability to develop
management strategies to reduce the frequency of interactions between
pilot whales and longline fishing gear due to a lack of information
regarding the nature, timing, and causes of these interactions. The
CHSRA, with its observer and research participation requirements, will
enable NMFS to assess current and potential new management measures and
will be fundamental in formulating effective bycatch reduction
strategies in the future.
To implement the research participation requirement, observers will
conduct scientific investigations aboard pelagic longline vessels in
the CHSRA, as authorized by MMPA section 118(d)(2)(C). These scientific
investigations will be conducted in addition to observing normal
fishing activities and will be designed to support the goals of the
PLTRP. The observers will inform vessel operators of the specific
additional investigations that may be conducted during the trip. An
observer may direct vessel operators to modify their fishing behavior,
gear, or both. Instead of or in addition to carrying an observer,
vessels may be required to carry and deploy gear provided by NMFS or an
observer or modify their fishing practices. By calling the NMFS SEFSC,
per the observer requirement described above, vessels are agreeing to
take an observer and acknowledging they are both willing and able to
participate in research in the CHSRA without any compensation. If
vessels are assigned any special research requirements, they must
participate in the research for the duration of the assignment. If they
do not participate in the research, they are prohibited from deploying
or fishing with pelagic longline gear in the CHSRA for that fishing
trip.
A vessel may transit through the CHSRA with pelagic longline gear
onboard without meeting the observer and research requirements
specified above and in 50 CFR 229.36(d)(1) and Sec. 229.36(d)(2) if
that gear is stowed according to 50 CFR Sec. 229.36(d)(3). Allowing
fishing vessels to transit through the CHSRA with stowed gear without
meeting the special observer and research requirements for that area
[[Page 23352]]
will permit vessels to increase their safety in the event of foul
weather by taking the most direct route to port and may reduce fuel
costs for fishing vessels as they will not have to transit around the
CHSRA to and from port.
Mainline Length
In accordance with the PLTRT's recommendation, NMFS is establishing
a 20-nm (37.04-km) upper limit on mainline length for all pelagic
longline sets within the MAB, including the CHSRA. Operators of
individual fishing vessels are allowed to fish multiple sets at one
time, if they so desire, but the mainline length for each set must not
exceed 20 nm (37.04 km).
NMFS may waive this restriction in the CHSRA with a written letter
of authorization from the Director, NMFS SEFSC, in specific cases to
support research for reducing bycatch of marine mammals in the pelagic
longline fishery. Fishermen are strongly encouraged to carry this
letter of authorization on board their vessel during research trips, to
facilitate at sea enforcement. In cases where NMFS intends to waive the
mainline length restriction, NMFS will notify the PLTRT.
Careful Handling and Release Guidelines Posting Requirement
As recommended by the PLTRT, NMFS is requiring that an
informational placard with marine mammal careful handling and release
guidelines be displayed in the wheelhouse and on the working deck of
all active pelagic longline vessels in the Atlantic fishery. NMFS has
developed and published this placard, which is based on the existing
marine mammal careful handling and release guidelines for pelagic
longline gear. The PLTRT specified the placard should draw on
information presented in a mandatory certification program and
reference filling out a Marine Mammal Injury and Mortality Reporting
Form for every marine mammal interaction as required by MMPA section
118(e) and 50 CFR 229.6. NMFS believes this action will facilitate the
careful handling and release of any pilot whale, Risso's dolphin, or
other small cetacean incidentally caught during pelagic longline
fishing. The posting requirement ensures NMFS' guidelines are readily
available for reference during a capture or entanglement event.
Non-regulatory Measures
As recommended by the PLTRT, NMFS is adopting the following non-
regulatory measures as components of the final PLTRP: (1) Within
constraints of available funding, increase observer coverage throughout
all Atlantic pelagic longline fisheries that interact with pilot whales
or Risso's dolphins to 12 to 15 percent; (2) encourage vessel operators
(i.e., captains) throughout the fishery to maintain daily
communications with other local vessel captains regarding protected
species interactions, with the goal of identifying and exchanging
information relevant to avoiding protected species bycatch; (3) update
careful handling/release guidelines, equipment, and methods; and (4)
provide quarterly reports of marine mammal interactions in the pelagic
longline fishery to the PLTRT.
Increased Observer Coverage
The PLTRT recommended NMFS increase observer coverage to 12 to 15
percent throughout all Atlantic pelagic longline fisheries that
interact with pilot whales and Risso's dolphins to ensure
representative sampling of fishing effort. The PLTRT specified sampling
should be designed to achieve statistical reliability of marine mammal
bycatch estimates and should also take into account the objectives of
marine mammal bycatch reduction. If resources are not available to
provide such observer coverage for all fisheries, regions, and seasons,
the PLTRT recommended NMFS allocate observer coverage to fisheries,
regions, and seasons with the highest observed or reported bycatch
rates of pilot whales. The PLTRT recommended additional coverage be
achieved by either increasing the number of NMFS observers who have
been specially trained to collect additional information supporting
marine mammal research, or by allowing designated and specially-trained
``marine mammal observers'' (deployed by either NMFS or cooperating
researchers) who would supplement traditional observer coverage.
NMFS is implementing this recommendation within the constraints of
available funding. A simulation analysis evaluating the effects of
increased observer coverage on the precision of bycatch estimates
indicated: (1) 12 to 15 percent observer coverage would result in the
most significant gains in precision, (2) setting a higher target in
this range would ``guard'' against unforeseen problems placing
observers on vessels, and (3) further increases in coverage would yield
relatively little additional precision despite significantly higher
costs. Pilot whales are primarily observed to interact with the
longline fishery in the MAB and Northeast Coastal areas; Risso's
dolphins interact with the fishery in these areas as well as the
Northeast Distant area. Based on these observations, NMFS will, within
the constraints of available funding, increase observer coverage to 12
to 15 percent, in order of priority, in the (1) CHSRA, (2) MAB, and (3)
other areas, such as Northeast Coastal. While this measure is geared
towards improving the precision of serious injury and mortality
estimates, additional coverage would also better characterize fishing
operations and marine mammal behavior, facilitate collection of data
needed for research, and increase opportunities to collect biopsy
samples from hooked or entangled marine mammals.
Captains' Communications
The PLTRT recommended NMFS encourage vessel operators (i.e.,
captains) to maintain daily communication with other local vessel
operators regarding protected species interactions throughout the
Atlantic pelagic longline fishery with the goal of identifying and
exchanging information relevant to avoiding protected species bycatch.
Captains' communication were considered as both a strategy for avoiding
marine mammals' exposure to vessels and gear and as a strategy for
reducing the probability of an interaction once marine mammals are in
the vicinity of the gear.
Available information from three case studies of voluntary
captains' communication programs supports the inference that voluntary
communication programs have substantially reduced fisheries bycatch and
provided large economic benefits that outweigh the relatively nominal
operating costs (Martin et al., 2005). For this communication strategy
to be effective, the exchange of information must be timely, the entire
fleet in a region must cooperate, and it must result in an action being
taken to either avoid or reduce bycatch (e.g., captains need to
describe the nature of their protected species interactions, discuss
the results of any mitigation or safe handling/release measures used,
and share best practices).
Atlantic pelagic longline fishermen are motivated to avoid
interactions with marine mammals, as these interactions can result in
significant economic loss due to loss of both target catch and gear
from depredation and entanglements, respectively. Marine mammal
interactions also represent a safety risk to vessel operators and crew,
as pilot whales caught in gear can be very dangerous due to their size
and strength. Therefore, NMFS will work with CHSRA researchers and
fishermen to
[[Page 23353]]
encourage captains' communications in the CHSRA through voluntary
cooperation and as part of ongoing research.
Careful Handling and Release Guidelines
The PLTRT recommended NMFS update the guidelines for careful
handling and release of entangled or hooked marine mammals. They
recommended NMFS' guidelines include descriptions of appropriate
equipment and methods. They also encouraged both NMFS and the pelagic
longline industry to develop new technologies, equipment, and methods
for safer and more effective handling and release of entangled or
hooked marine mammals. They recommended developments be evaluated
carefully and incorporated into revised guidelines for careful handling
and release of marine mammals when appropriate.
In the winter of 2006, in preparation for the workshops for HMS
fishermen, NMFS worked with the PLTRT and other NMFS staff to update a
preexisting placard to reflect the best available information on
careful handling and release of marine mammals. This version of the
placard has been distributed at HMS training workshops in 2007 and
2008. NMFS will periodically update the guidelines per the PLTRT's
recommendation, based on any new technologies, equipment, and methods
for safer and more effective handling and release of entangled or
hooked marine mammals.
Additional Research and Data Collection
NMFS will pursue the research and data collection goals outlined by
the PLTRT, within the constraints of available funding. These include
short-, medium-, and long-duration research and data collection goals
designed to enhance the success of the PLTRP. Because there is a
significant lack of information concerning how pilot whales and Risso's
dolphins interact with the pelagic longline fishery, many of the
research recommendations are general in scope and applicable to both
pilot whales and Risso's dolphins unless specified otherwise. The
complete list of these recommendations can be found in Section IX of
the Draft PLTRP (PLTRT, 2006).
As recommended by the PLTRT, priority will be given to: (1)
research on species with serious injury and mortality levels closest to
or exceeding PBR levels; (2) research to evaluate the effects of
implemented management measures, and (3) research on species specific
abundance, mortality, and post-hooking survivorship. NMFS will consider
the PLTRT's recommendations for additional research and data collection
when establishing NMFS' funding priorities. NMFS will follow those
recommendations to the extent that good scientific practice and
resources allow. As feasible and appropriate, NMFS will consult with
PLTRT members during this process.
Adaptive Management and Monitoring
The final PLTRP takes a stepwise, adaptive management approach to
achieve the long-term goal of reducing, within five years of its
implementation, serious injuries and mortalities of pilot whales and
Risso's dolphins in the Atlantic pelagic longline fishery to
insignificant levels approaching a zero mortality and serious injury
rate. A series of monitoring and evaluation steps are built into the
five-year implementation phase of the final PLTRP.
Under the final PLTRP, the PLTRT will periodically: (1) analyze the
status of scientific information on pilot whales and Risso's dolphins,
(2) evaluate the effectiveness of the PLTRP, and (3) adjust the PLTRP's
management measures and research program, as appropriate, to ensure
that the goal of the PLTRP will be met within 5 years of its
implementation. Per the PLTRT's request, NMFS will provide any updates
available on the following types of information to inform these
periodic assessments: (1) Status of PLTRP implementation, (2) SARs; (3)
habitat analyses; (4) data collection and research findings; (5)
voluntary efforts carried out by the pelagic longline industry; (6)
status of observer coverage; and (7) predictive model results for pilot
whales and Risso's dolphins, based on updated data.
The timing of these assessments will be tied to both the
availability of data and the time needed to adequately evaluate the
effectiveness of management measures or the results of the research
program. As requested by the PLTRT, NMFS will provide them with
quarterly reports of bycatch of marine mammals in the pelagic longline
fishery. The quarterly reports will help determine when it would be
timely and useful for the PLTRT to reconvene. In conjunction with the
receipt of quarterly bycatch reports, the PLTRT agreed to assess the
merits of convening future PLTRT meetings, either in-person or by
teleconference.
Comments and Responses
NMFS received ten sets of written comments on the proposed rule by
the September 22, 2008, deadline. Comments were received from the
Marine Mammal Commission, the U.S. Department of Interior, North
Carolina Division of Marine Fisheries, Ocean Conservancy, Oceana,
Center for Biological Diversity, the Humane Society of the U.S., two
commercial fishermen, and one member of the public. Three of these
organizations generally supported NMFS' use of existing authority to
implement the mandatory HMS longline certification workshops. Other
comments, which are responded to here, were considered when developing
this final rule to amend the regulatory and non-regulatory measures
that implement the PLTRP.
General Comments
Comment 1: The Humane Society of the U.S. and Ocean Conservancy
agreed with NMFS' determination that the level of bycatch in the
pelagic longline fishery signifies a high level of bycatch across a
number of marine mammal stocks warranting development of a take
reduction plan.
Response: NMFS agrees and has determined that the high level of
take of some marine mammal species in the Atlantic pelagic longline
fishery warrants a PLTRP. This final rule is composed of regulatory and
non-regulatory measures recommended by the PLTRT to reduce pilot whale
and Risso's dolphin bycatch in the Atlantic pelagic longline fishery.
Comment 2: Ocean Conservancy recommended including a map of the
CHSRA in the final rule.
Response: NMFS has included a map of the CHSRA in Figure 1 of this
final rule.
Comment 3: The Humane Society of the U.S., Oceana, and the Center
for Biological Diversity were concerned that the establishment of a 20-
nm (37.02-km) upper limit on the mainline length might actually result
in more gear being deployed to compensate for lost effort, thus
increasing overall bycatch in the pelagic longline fishery. The Center
for Biological Diversity suggested that NMFS should amend the
regulation to ensure that no more than 20-nm (37.02-km) of mainline in
total is set by a single vessel at a time. Oceana encouraged NMFS to
require mainline length reductions outside the MAB, if they were
effective at reducing bycatch.
Response: Using predictive modeling, NMFS and the PLTRT evaluated
several fishery effort compensation scenarios in creating the 20-nm
(37.04-km) upper limit on mainline length regulation. These included a
scenario in which any set with an original mainline length greater than
or equal to 30 miles was
[[Page 23354]]
replaced by two, 20 mile sets with the same hook spacing as the
original, longer set. Even under this scenario of over-compensation for
fishing effort, there was an estimated reduction in pilot whale
interactions of 29 percent from the status quo. Thus, the predictive
model suggests that the number of hooks in the water is irrelevant to
catches of pilot whales, rather it is the length of the mainline for
each set that predicts bycatch (PLTRT, 2006). Therefore, NMFS does not
believe that overall marine mammal bycatch will increase in the pelagic
longline fishery under this final regulation, or that vessels should be
limited to one 20-nm (37.04 km) set at a time. However, NMFS will
continue to evaluate the effectiveness of this final rule for
reductions in marine mammal bycatch in the pelagic longline fishery and
will address the issue if it appears the regulations are having the
opposite effect intended.
In addition, the PLTRT recommended implementing mainline length
reductions in the MAB because 81 percent of pilot whale interactions
with pelagic longline fishing gear occur in this area (PLTRT, 2006).
The PLTRT recognized that it may be desirable to extend the limitation
on mainline length to sets occurring in other regions of the Atlantic
fishery, based on additional information on the effectiveness of the
limitation in reducing marine mammal bycatch rates in the MAB (PLTRT,
2006). If mainline length reductions are effective at reducing pilot
whale and Risso's dolphin bycatch, NMFS will consult the PLTRT
regarding potential expansion of this regulation.
Comment 4: Two commercial fishermen and the N.C. Division of Marine
Fisheries were opposed to the 48-hour advance call-in requirement for
vessels deploying or fishing with pelagic longline gear in the CHSRA or
transiting through the CHSRA with pelagic longline gear onboard. Their
concerns included that: (1) many North Carolina fishing vessels make
trips that are 1-3 days in duration and often return to the fishing
grounds as soon as the catch is offloaded and fuel and ice are taken
aboard; and (2) fishing in the CHSRA is weather, current, and fish
report/activity dependent, and, therefore, the decision of whether to
fish is often made with less than 12-hours notice. They were concerned
that a 48-hour call-in requirement may result in the loss of a fishing
opportunity and/or loss of favorable weather for fishing. The N.C.
Division of Marine Fisheries recommended that NMFS use a program
similar to the current observer program to notify fishermen of the
requirement to carry scientific observers, rather than the 48-hour
call-in requirement.
Response: NMFS has determined that 48-hours is the minimum amount
of time necessary for the NMFS SEFSC to have an observer available in
the mid-Atlantic region to observe fishing trips in the CHSRA. However,
to alleviate the burden on fishermen, NMFS is allowing vessels to
depart prior to their stated date and time of departures if, upon
calling in, the vessel is informed by the NMFS SEFSC that no observer
will be assigned and that no special research requirements will apply
for that trip. Because this is an area of significant marine mammal
bycatch, NMFS believes this measure provides access to a productive
fishing area while also ensuring opportunities to collect data and
increase our understanding of the nature of marine mammal/pelagic
longline interactions.
Comment 5: The N.C. Division of Marine Fisheries, the Humane
Society of the U.S., and Ocean Conservancy suggested and/or supported
allowing vessels to transit through the CHSRA with pelagic longline
gear onboard without calling the NMFS SEFSC 48-hours in advance,
provided all gear were properly stowed in accordance with current NMFS
regulations. The N.C. Division of Marine Fisheries expressed concern
that vessels fishing outside the CHSRA and encountering unfavorable
weather or other vessels desiring to transit through the CHSRA to reach
safe harbor - would be required to steam additional distance to bypass
the CHSRA or ride out the weather until 48-hours had elapsed, which
could result in safety hazards, increased fuel consumption, lost time,
and increased expenses.
Response: NMFS agrees that the 48-hour call-in requirement for
vessels transiting through the CHSRA could pose a safety hazard and/or
economic burden to pelagic longline fishing vessels. Therefore, NFMS
has created an exception to the regulation to allow pelagic longline
vessels to transit through the CHSRA without meeting the observer and
research requirements specified in 50 CFR 229.36(d)(1) and (d)(2), if
that gear is stowed according to Sec. 229.36 (d)(3).
Comment 6: The N.C. Division of Marine Fisheries requested that the
language concerning refusal to take an assigned observer in the CHSRA
be clarified to specify that the prohibition from deploying or fishing
with pelagic longline gear in the CHSRA will be for the duration of
that trip only.
Response: NMFS agrees that the intent was to prohibit fishing in
the CHSRA only for the trip affected by refusal to take an observer or
research non-participation and has incorporated clarifying language
into Sec. 229.36(d)(1) and (d)(2).
Comment 7: Four commenters had concerns and/or suggestions for NMFS
regarding compliance with the proposed rule. The Center for Biological
Diversity and the Humane Society of the U.S. expressed concern that
fishermen might avoid observer coverage in the CHSRA by only fishing in
the area when no observers were available. Oceana recommended that NMFS
and the U.S. Coast Guard develop a standardized procedure for measuring
mainline length to assist in compliance and enforcement of this
regulation. Ocean Conservancy recommended that NMFS develop a
communication plan, to be shared with the PLTRT, describing how non-
compliance with the regulations will be enforced.
Response: With so many factors to consider in conducting a fishing
trip (such as weather, tide, fishing reports), NMFS does not believe
that it would be economically viable for fishermen to base their trips
solely on observer availability. Because fishermen must call in 48-
hours before each fishing trip to the CHSRA, it would be time-consuming
and difficult for fishermen to attempt to avoid observer coverage, and
fishermen will not be able to predict when observers are available.
NMFS will work closely with its Office of Law Enforcement, the U.S.
Coast Guard, and state enforcement agents to ensure effective
enforcement of the regulations described in this final rule, including
mainline length limitations. To protect the integrity and covert nature
of an enforcement plan, though, specific details concerning enforcement
will not be shared with the public.
Comment 8: Three commenters noted the importance of outreach in the
success of the PLTRP. Ocean Conservancy recommended that NMFS develop a
communication plan, to be shared with the PLTRT, describing which
fishing vessels should call-in to deploy or fish with pelagic longline
gear in the CHSRA or transit through the CHSRA with pelagic longline
gear onboard. The Ocean Conservancy also encouraged NMFS to conduct
outreach with affected fishermen to ensure that captains fishing in the
CHSRA and throughout the MAB communicate with each other regarding
interactions with marine mammals. The Humane Society of the U.S. and
the Center for Biological Diversity encouraged NMFS to undertake
outreach to ensure that pelagic longline vessels have the Careful
Handling and Release Guidelines
[[Page 23355]]
Placard, understand its information, and are using it appropriately.
Response: NMFS agrees that communication with the pelagic longline
fishermen and outreach will be critical to the success of the PLTRP. To
ensure that pelagic longline fishermen are familiar with the measures
outlined in this take reduction plan, NMFS will develop a compliance
guide, which will help clarify the regulations and necessary compliance
actions. Fishermen and other interested parties will be able to
download the compliance guide from a website; the compliance guide will
also be available by contacting the Protected Resources Division, NMFS,
Southeast Region (see ADDRESSES). In addition, more than one-third of
the PLTRT is composed of commercial fishermen and industry
representatives, who can assist NMFS with compliance via outreach to
the fishermen they represent. NMFS also currently has a fishery liaison
based in North Carolina who can assist with outreach to pelagic
longline fishermen. Finally, NMFS will present elements of the PLTRP at
the mandatory HMS longline certification workshops. NMFS has already
incorporated education on careful handling and release techniques for
marine mammals, current regulations and guidelines related to marine
mammal bycatch that apply to the fishery, and an explanation of the
purpose and justification of those regulations and guidelines into
these workshops.
Comment 9: Oceana, Ocean Conservancy, the Center for Biological
Diversity, the Humane Society of the U.S., and the Marine Mammal
Commission supported and/or encouraged NMFS to allocate appropriate
funds to increase observer coverage to 12 to 15 percent in the Atlantic
pelagic longline fishery. A commercial fisherman and the Ocean
Conservancy suggested that NMFS station observers in the mid-Atlantic
region to meet the PLTRP's goal of increased observer coverage in the
MAB and/or reduce the waiting time for fishermen to depart on a fishing
trip. The N.C. Division of Marine Fisheries was concerned that NMFS
would not have an adequate number of trained marine mammal observers to
achieve the recommended level of observer coverage without unduly
impacting North Carolina pelagic longline fishermen.
Response: NMFS agrees that it is important to increase observer
coverage to 12 to 15 percent in the Atlantic pelagic longline fishery,
has included increased observer coverage as an element of this final
PLTRP, and will attempt to achieve this level of coverage within the
constraints of available funding. NMFS manages its observer funding in
the most cost effective manner for the greatest benefit to our living
marine resources; therefore, we would consider stationing observers in
the mid-Atlantic region, if it were cost effective to do so. If there
are insufficient funds or trained observers available, then NMFS will
be unable to meet the recommended observer coverage of 12 to 15
percent. However, this would not affect the fishing ability of North
Carolina pelagic longline fishermen. As discussed in the response to
Comment 4, within the CHSRA, NMFS is allowing fishing vessels to depart
prior to their stated date and time of departures if informed by the
NMFS SEFSC that no observer will be assigned and that no special
research requirements will apply for that trip. In addition, NMFS will
make every effort to inform fishermen about upcoming and future
research projects in the CHSRA in an attempt to minimize any burden
placed on those fishermen.
Comment 10: NMFS received several comments on the mandatory HMS
longline certification workshops and the informational placard to be
displayed in the wheelhouse and on the working deck of all active
pelagic longline vessels in the Atlantic fishery. Ocean Conservancy
recommended that the mandatory HMS longline certification workshops
include information and training on fishermen's reporting of marine
mammal interactions, which is required by the MMPA Section 118(e). They
also recommended that marine mammal information be included in all HMS
longline certification workshops, including those based in the Gulf of
Mexico and Caribbean, rather than just those in the Atlantic region.
The Ocean Conservancy, Oceana, and the Marine Mammal Commission also
suggested that NMFS expand the geographic area where the informational
placard should be displayed to the entire Atlantic, Gulf of Mexico, and
Caribbean.
Response: NMFS currently includes, and will continue to include,
information and training on the reporting of marine mammal interactions
in the mandatory HMS longline certification workshops. NMFS agrees that
the placard should be displayed throughout the Atlantic fishery. This
was the original intention of the PLTRT and this requirement was
included in the EA and the preamble to the proposed rule. However, the
placard posting requirement was incorrectly linked in the regulation
text of the proposed rule to only the MAB region. Therefore, in the
final rule NMFS has clarified that the placard posting requirement
specified in 50 CFR 229.36(c) applies to all U.S. pelagic longline
vessels operating in the Atlantic federal EEZ off the U.S. East Coast.
Because bycatch rates of pilot whales and Risso's dolphins are
highest in the MAB, the PLTRT limited the scope of the PLTRP to the MAB
and did not include the GOM and Caribbean. As a result, NMFS is not
requiring the placard to be posted outside of the Atlantic. However,
NMFS will provide the placard to any fishermen who request it and will
encourage voluntary compliance with this measure in the Gulf of Mexico
and Caribbean.
Comment 11: Oceana, Ocean Conservancy, the Center for Biological
Diversity, the Humane Society of the U.S., and the Marine Mammal
Commission encouraged NMFS to secure funding to carry out the research
priorities outlined in the Draft PLTRP. They recommended that the
highest priority research should be directed towards defining the stock
structure of pilot whales in the MAB.
Response: NMFS will work with its partners and will seek to use
available funding sources to carry out the research and data collection
priorities outlined by the PLTRT. NMFS is currently conducting research
to define the stock structure of pilot whales in the mid-Atlantic and
will continue to do so.
Changes From the Proposed Rule
After considering the public comments received, NMFS is making
minor changes between the proposed rule and this final rule. As a
result of clarification from the PLTRT regarding their intent, NMFS is
altering the notification process for waiving a 20-nm (37.04-km) upper
limit on mainline length for research in the CHSRA to include notifying
the PLTRT, but NMFS will not publish that notification in the Federal
Register. NMFS is deleting the phrase ``as delineated in the list of
fisheries'' from 50 CFR 229.36 (a), because it was deemed unnecessary.
NMFS is also clarifying that the placard posting requirement specified
in 50 CFR 229.36(c) applies to all U.S. pelagic longline vessels
operating in the Atlantic Federal EEZ off the U.S. East Coast. Although
this requirement and its geographic scope were clearly stated in the EA
and the preamble to the proposed rule, it was incorrectly linked in the
regulation text of the proposed rule to only the MAB region.
NMFS is clarifying that under 50 CFR 635.32, exempted fishing
permits, scientific research permits, display permits, and letters of
acknowledgment
[[Page 23356]]
are issued; Atlantic HMS tunas, swordfish, or shark permits are not
issued. Therefore, the reference to Sec. 635.32 was deleted from the
regulatory text at 50 CFR 229.36 (a)(1) because it did not apply.
In addition, NMFS is changing the regulations for pelagic longline
vessels in the CHSRA to allow a vessel to transit through the CHSRA
with pelagic longline gear onboard without meeting the observer and
research requirements specified in 50 CFR 229.36(d)(1) and (d)(2), if
that gear is stowed according to 50 CFR 229.36(d)(3). The stowage
definition in Sec. 229.36(d)(3) was not presented in the proposed
rule, but was based on a similar stowage definition for bottom longline
gear at 50 CFR 622.34(k)(4)(i).
NMFS is clarifying the 48-hour call-in notification described in
Sec. 229.36(d)(1) to state that vessels must call in at least 48
hours, but no more than 96 hours, prior to departing on a fishing trip
to the CHSRA. The 96-hour limit was added to clearly define the amount
of lead time a fisher needed to provide to NMFS. NMFS is also allowing
a fishing vessel to depart prior to their stated departure time if,
upon calling in, the vessel is informed by the NMFS SEFSC that no
observer will be assigned and that no special research requirements
will apply for that trip. The SEFSC call-in number given in Sec.
229.36(d) of the final rule is also different from that given in the
proposed rule. Finally, NMFS is clarifying in Sec. 229.36(d)(1) that a
fishing vessel that refuses to take an assigned observer is prohibited
from deploying or fishing with pelagic longline gear in the CHSRA for
the duration of that fishing trip.
Classification
NMFS determined that this action is consistent to the maximum
extent practicable with the enforceable policies of the approved
coastal management programs of North Carolina, Virginia, Maryland,
Delaware, New Jersey, New York, Connecticut, Rhode Island, and
Massachusetts. This determination was submitted for review by the
responsible state agencies under section 307 of the Coastal Zone
Management Act (CZMA). Letters stating concurrence with NMFS' CZMA
consistency determination were received from the approved coastal
management programs of North Carolina, Virginia, Delaware, Connecticut,
and Rhode Island. No responses were received from Maryland, New Jersey,
New York, or Massachusetts; CZMA consistency in these states was
inferred.
This rule does not contain policies with federalism implications as
that term is defined in Executive Order 13132.
This rule has been determined to be not significant under Executive
Order 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA), based
on the initial regulatory flexibility analysis (IRFA), of the final
rule. A statement of the need for and objectives of the final rule is
stated elsewhere in the preamble and is not repeated here. A summary of
the FRFA follows. For a copy of this analysis, see the ADDRESSES
section.
NMFS considers all HMS permit holders to be small entities because
they either had average annual receipts less than $4.0 million for
fish-harvesting, average annual receipts less than $6.5 million for
charter/party boats, 100 or fewer employees for wholesale dealers, or
500 or fewer employees for seafood processors. These are the Small
Business Administration (SBA) size standards for defining a small
versus large business entity in this industry. An ``active'' pelagic
longline vessel is considered to be a vessel that reported pelagic
longline activity in the HMS logbook. The number of active HMS pelagic
longline vessels has been precipitously decreasing since 1994. In the
MAB, only 85 unique pelagic longline vessels reported effort between
2001 and 2006. The number of vessels fishing in the MAB has declined in
recent years, and between 2003 and 2006, the number of vessels
reporting effort in the MAB ranged between 38 and 41.
Four alternatives were considered and analyzed for the final rule.
Alternative 1 (the no action alternative) would maintain the status quo
management for the pelagic longline fishery under the HMS FMP.
Alternative 2 would implement only the non-regulatory components
recommended in the Draft PLTRP, while allowing time for collecting
additional scientific data prior to implementing regulatory measures.
Alternative 3, the preferred alternative, would limit the mainline
length to 20-nm (37.04-km) or less within the MAB, designate the CHSRA
with associated observer and research participation requirements, and
require all pelagic longline vessels to post an informational placard
on careful handling and release of marine mammals. Alternative 4 would
include a six-month closure (July-December) of the southern MAB sub-
regional area and a year-round mainline length reduction throughout the
MAB, inclusive of that sub-regional area.
Under Alternative 1, the no action alternative, it is estimated
that the Atlantic pelagic longline fleet generates an estimated $24.6
million in revenues. Under this alternative there would be no direct
cost or benefit beyond the status quo. The non-regulatory actions
associated with Alternative 2 would also be expected to have very
little economic impact on the fishery.
NMFS estimated the potential change in fishery revenues from the
mainline length restriction included under Alternative 3, depending on
the level of compensation in fishing effort, by applying average
species weights reported to dealers in 2004 and the average 2006 ex-
vessel prices reported by dealers in the MAB region. The change in
fishery revenues was estimated to range from an increase of $777,747
(full compensation in the number of hooks fished) to a loss of $819,523
(no compensation in the number of hooks fished), with an estimated loss
of $239,383 with 50 percent compensation in the number of hooks fished.
This change in revenues would impact 41 or fewer vessels per year based
on current trends in the number of active pelagic longline vessels and
the number of vessels that operated in the MAB in 2006. If one assumes
that 41 vessels are affected by this restriction, then the estimated
annual impact per vessel ranges from an increase of $18,969 per vessel
to a decrease of $19,988 per vessel, with an estimated decrease of
$5,838 under the most likely scenarios (50 percent compensation in
fishing effort).
The economic costs of Alternative 4 were evaluated based upon
historical observed catch rates and reported effort in the MAB fishing
area only for the period 2002 to 2004. The impact of the closure of the
southern region of the MAB from July-December was estimated by assuming
no catch in that area, resulting in a total estimated cost of $770,000.
The combined effect of the 6-month closure and the mainline length
restriction through the MAB resulted in an estimated cost of $1.64
million, reflecting only lost catch and assuming no compensation or
redistribution of effort. The reduction in revenues would impact 41 or
fewer vessels per year based on the current trends in the number of
active pelagic longline vessels and the number of vessels that operated
in the MAB in 2006. If one assumes that 41 vessels would be affected by
this restriction, then per vessel impacts are estimated to be $40,000.
Alternative 1 (the no action alternative) and Alternative 2 were
not selected because they were not expected
[[Page 23357]]
to meet the conservation objectives of the final rule or the goals in
MMPA section 118. Both Alternatives 3 and 4 would meet the conservation
objectives of the final rule. However, Alternative 4 was not selected
because it would likely result in larger economic impacts to small
entities than Alternative 3 (the preferred alternative).
References Cited
A complete list of all references cited in this final rule can be
found on the PLTRT website at http://www.nmfs.noaa.gov/pr/interactions/trt/pl-trt.htm and the NMFS Southeast Regional Office website at http://sero.nmfs.noaa.gov/pr/pr.htm, and is also available upon request from
the NMFS Southeast Regional Office in St. Petersburg, FL (see
ADDRESSES).
[GRAPHIC] [TIFF OMITTED] TR19MY09.006
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Fisheries, Reporting and
recordkeeping requirements.
Dated: May 11, 2009.
John Oliver,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR part 229 is amended as
follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
0
1. The authority citation for part 229 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. In Sec. 229.3, paragraphs (t) and (u) are added to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(t) It is prohibited to deploy or fish with pelagic longline gear
in the Mid-Atlantic Bight unless the vessel:
(1) Complies with the placard posting requirement specified in
Sec. 229.36(c); and
(2) Complies with the gear restrictions specified in Sec.
229.36(e).
(u) It is prohibited to deploy or fish with pelagic longline gear
in the Cape
[[Page 23358]]
Hatteras Special Research Area unless the vessel is in compliance with
the observer and research requirements specified in Sec. 229.36(d).
0
3. In subpart C, Sec. 229.36 is added to read as follows:
Sec. 229.36 Atlantic Pelagic Longline Take Reduction Plan (PLTRP).
(a) Purpose and scope. The purpose of this section is to implement
the PLTRP to reduce incidental mortality and serious injury of long-
finned and short-finned pilot whales and Risso's dolphins in the
Atlantic pelagic longline fishery off the U.S. east coast, a component
of the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics
longline fishery.
(1) Persons subject to this section. The regulations in this
section apply to the owner and operator of any vessel that has been
issued or is required to be issued an Atlantic HMS tunas, swordfish, or
shark permit under Sec. 635.4 of this title and that has pelagic
longline gear onboard as described under Sec. 635.21(c) of this title.
(2) Geographic scope. The geographic scope of the PLTRP is the
Atlantic Federal EEZ off the U.S. East Coast. The regulations specified
in paragraphs (b) through (d) of this section apply throughout the
Atlantic Federal EEZ off the U.S. East Coast. The regulation specified
in paragraph (e) of this section applies to all U.S. Atlantic pelagic
longline vessels operating in the EEZ portion of the Mid-Atlantic
Bight.
(b) Definitions. In addition to the definitions contained in the
MMPA and Sec. Sec. 216.3 and 229.2 of this chapter, the following
definitions apply.
(1) Cape Hatteras Special Research Area (CHSRA) means all waters
inside and including the rectangular boundary described by the
following lines: 35[deg] N. lat., 75[deg] W. long., 36[deg] 25' N.
lat., and 74[deg] 35' W. long.
(2) Mid-Atlantic Bight means the area bounded by straight lines
connecting the mid-Atlantic states' internal waters and extending to
71[deg] W. long. between 35[deg] N. lat. and 43[deg] N. lat.
(3) Observer means an individual authorized by NMFS, or a
designated contractor, placed aboard a commercial fishing vessel to
record information on marine mammal interactions, fishing operations,
marine mammal life history information, and other scientific data; to
collect biological specimens; and to perform other scientific
investigations.
(4) Pelagic longline has the same meaning as in Sec. 635.2 of this
title.
(c) Marine Mammal Handling and Release Placard. The placard,
``Marine Mammal Handling/Release Guidelines: A Quick Reference for
Atlantic Pelagic Longline Gear,'' must be kept posted inside the
wheelhouse and on the working deck. You may contact the NMFS Southeast
Regional Office at (727) 824-5312 to request additional copies of the
placard.
(d) CHSRA--(1) Special observer requirements. If you deploy or fish
with pelagic longline gear in the CHSRA, or intend to do so, you must
call NMFS Southeast Fisheries Science Center (SEFSC), 1-888-254-2558,
at least 48 hours, but no more than 96 hours, prior to embarking on
your fishing trip. This requirement is in addition to any existing
selection and notification requirement for observer coverage by the
Pelagic Observer Program. If, upon calling in, you are informed by the
NMFS SEFSC that no observer will be assigned and that no special
research requirements will apply for that trip, then you need not wait
until your stated date and time of departure and may depart on your
fishing trip immediately. If you are assigned an observer, you must
take the observer during that fishing trip. If you do not take the
observer, you are prohibited from deploying or fishing with pelagic
longline gear in the CHSRA for that fishing trip. You must comply with
all provisions of Sec. 229.7, Monitoring of incidental mortalities and
serious injuries. In addition, all provisions of 50 CFR 600.746,
Observers, apply. No waivers will be granted under Sec. 229.7(c)(3) or
Sec. 600.746(f). A vessel that would otherwise be required to carry an
observer, but is inadequate or unsafe for purposes of carrying an
observer and for allowing operation of normal observer functions, is
prohibited from deploying or fishing with pelagic longline gear in the
CHSRA.
(2) Special research requirements. In addition to observing normal
fishing activities, observers may conduct additional scientific
investigations aboard your vessel designed to support the goals of the
PLTRP. The observer will inform you of the specific additional
investigations that may be conducted during your trip. An observer may
direct you to modify your fishing behavior, gear, or both. Instead of
carrying an observer, you may be required to carry and deploy gear
provided by NMFS or an observer or modify your fishing practices. By
calling in per Sec. 229.36(d)(1), you are agreeing to take an
observer. You are also acknowledging you are both willing and able to
participate in research, as per this paragraph, in the CHSRA consistent
with the PLTRP without any compensation. If you are assigned any
special research requirements, you must participate in the research for
the duration of the assignment. If you do not participate in the
research, you are prohibited from deploying or fishing with pelagic
longline gear in the CHSRA for that fishing trip.
(3) Exception for transit. If pelagic longline gear is
appropriately stowed, a vessel may transit through the CHSRA without
meeting the observer and research requirements specified in Sec.
229.36(d)(1) and Sec. 229.36(d)(2). For the purpose of this paragraph,
transit means non-stop progression through the area. Pelagic longline
gear is appropriately stowed if all gangions, hooks, and buoys are
disconnected from the mainline; hooks are not baited; longline left on
the drum is covered with a tarp; and all other gear components are
either stowed below deck or secured on deck and covered with a tarp.
(e) Gear restrictions. No person may deploy a pelagic longline that
exceeds 20 nautical miles (nm) (37.04 km) in length in the Mid-Atlantic
Bight, including in the CHSRA, unless they have a written letter of
authorization from the Director, NMFS Southeast Fishery Science Center
to use a pelagic longline exceeding 20 nm (37.04 km) in the CHSRA in
support research for reducing bycatch of marine mammals in the pelagic
longline fishery.
[FR Doc. E9-11664 Filed 5-18-09; 8:45 am]
BILLING CODE 3510-22-S