Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Pelagic Longline Take Reduction Plan, 23349-23358 [E9-11664]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23349-23358]
From the Federal Register Online via the Government Printing 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 https://www.nmfs.noaa.gov/pr/interactions/trt/pl-trt.htm and the NMFS Southeast 
Regional Office website at https://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 https://www.nmfs.noaa.gov/pr/interactions/trt/pl-trt.htm and the NMFS Southeast Regional Office website at https://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)