[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3431-3434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1382]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 990104001-9001-01; I.D. 111398D]
RIN 0648-AM05


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule; request for comments.

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SUMMARY: This rule will allow acoustic deterrent devices to be deployed 
farther away from the net in the California/Oregon drift gillnet 
fishery (CA/OR DGN fishery). The intended effect of this action is to 
allow acoustic devices to be more safely and efficiently attached to 
drift gillnets.

DATES: Effective January 22, 1999. NMFS will accept comments until 
February 22, 1999.

ADDRESSES: Submit comments on the interim final rule to Dr. William T. 
Hogarth, Regional Administrator, Southwest Region, NMFS, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, Southwest 
Region, 562-980-4016.

SUPPLEMENTARY INFORMATION: On October 3, 1997 (62 FR 51805), NMFS 
published a final rule requiring training, equipment, and gear 
modifications for operators and vessels in the CA/OR DGN fishery to 
reduce the mortality and serious injury of several marine mammal stocks 
that occurs incidental to fishing operations. The regulatory text was 
codified in subpart C of 50 CFR part 229. To correct and clarify the 
meaning of the final rule, NMFS amended the regulations on May 21, 1998 
(63 FR 27860).
    Section 229.31(c) (1) and (2) require acoustic deterrent devices 
(pingers) to be used on all vessels in the CA/OR DGN fishery during 
every set and this section specifies pinger sound characteristics. 
Under Sec. 229.31(c)(3), pingers must be attached on or near the 
floatline and on or near the leadline and spaced no more than 300 ft 
(90.0 m) apart. Pingers attached on extenders (buoy lines) or attached 
to the floatline with lanyards (lines) must be within 3 ft (0.91 m) of 
the floatline. Pingers attached with lanyards to the leadline must be 
within 6 ft (1.82 m) of the leadline. These pinger deployment distances 
were based on the same lengths of the lanyards used to attach pingers 
to the net in NMFS' pinger experiments in the CA/OR DGN fishery during 
1996 to 1997. Results from these experiments indicated that over time, 
fishers became proficient at placing and removing pingers from both the 
floatline and leadline. The final Environmental Assessment of the final 
rule to implement the Pacific Offshore Cetacean Take Reduction Plan 
(NMFS, 1997) concluded that deploying pingers on the floatline is 
easier than the leadline because as the net is payed out the leadline 
is often buried by slack in the net. For this reason, the net reel may 
need to be slowed or stopped to safely attach and detach pingers to/
from the leadline.
    After the final rule became effective and the entire fishery was 
required to use pingers, NMFS learned that allowing pingers to be 
deployed farther away from the net could provide greater flexibility 
for attaching and removing pingers. Representatives of the CA/OR DGN 
fishery reported to NMFS that allowing pingers to be deployed farther 
away from the net could facilitate more efficient (faster) attachment 
of pingers during the ``setting'' of the net and removal of pingers 
during net retrieval. Also, at a series of skipper education workshops 
held in August and September 1998, CA/OR DGN fishers stated that 
pingers could be more efficiently and safely attached and removed to 
and from the net with longer pinger lanyards. Specifically, they 
suggested that allowing pingers to be deployed within 30 ft (9.14 m) of 
the floatline and within 36 ft (10.97 m) of the leadline should allow 
for more efficient and safe placement of pingers on the net. In 
particular, for some drift gillnet fishing operations, if longer pinger 
lanyards were attached permanently to the leadline, pingers may be 
deployed without slowing down the net reel because direct handling of 
the leadline to attach and/or remove pingers would not be necessary. 
For instance, after removing a ``leadline'' pinger from a permanently 
attached 36-ft (10.97 m) leadline lanyard during net retrieval, the 
lanyard could be temporarily tied to the floatline before the net was 
spun on the net reel. During the next fishing set, the leadline pinger 
lanyard would be readily accessible near the floatline for attachment 
of a leadline pinger. This rule allows greater

[[Page 3432]]

flexibility for pinger placement and removal from/to the net.
    Increasing the length of pinger lanyards should not affect the 
efficacy of pingers at reducing cetacean bycatch in the fishery. 
Section 229.31(c)(1) stipulates that only pingers that broadcast a 
sound frequency of 10 kHz (2 kHz) at 132 dB (4 
dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15 
milliseconds) and repeating every 4 seconds (+ .2 seconds) may be used 
in the CA/OR DGN fishery. Pingers must also be operational to a water 
depth of at least 100 fathoms (600 ft or 182.88 m). Pingers were 
originally designed to produce a sound level that is audible at 15 dB 
above ambient noise levels at a distance of 100 m (328 ft) from the 
pinger (NMFS, 1996). To conservatively maintain this sound level in all 
areas of the net, pingers were placed every 300 ft (91.44 m) on the 
floatline and leadline during NMFS' pinger experiments in the CA/OR DGN 
fishery. NMFS required pingers to be attached on both the floatline and 
leadline because drift gillnets, especially when targeting swordfish, 
are often set with the floatline above the ocean temperature 
thermocline. Thermoclines may act as a barrier to sound transmission. 
Allowing pingers to be attached within 30 ft (9.14 m) and 36 ft (10.97 
m) from the floatline and leadline, respectively, should maintain the 
same level of cetacean bycatch reduction as shorter pinger lanyards as 
long as the vertical distance between pingers on the floatline and 
leadline is not greater than 300 ft (91.44 m).
    Although termed ``gillnets'', drift gillnets are designed to 
entangle fish rather than to capture fish by the gills. Drift gillnets 
are constructed of twisted nylon that is tied to form squares (meshes). 
Mesh size is measured as the distance between two opposite knots of 
mesh when stretched apart diagonally. To effectively catch fish, the 
net meshes must open to form squares. Fish entanglement would be 
impossible, or substantially reduced, if the net meshes were completely 
stretched during fishing. The average stretched mesh size in the CA/OR 
DGN fishery is 19 in (48.26 cm), but ranges from 16-22 in (48.26-55.88 
cm). For 22-inch (55.88 cm) mesh (stretched size), the distance between 
the two opposing knots when the net is in the water is approximately 12 
in (30.48 cm). Thus, because the maximum observed net depth (measures 
in meshes) is 160 meshes, the maximum vertical length of a drift 
gillnet while it is being fished is approximately 160 ft (48.76 m) (160 
meshes  x  1 ft (.3048 m) per mesh). Since pingers attached to the 
floatline with 30-ft (9.14 m) lanyards and pingers attached to the 
leadline with 36-ft (10.97 m) lanyards would not be more than 
approximately 226 ft (68.88 m) apart (160 + 30 + 36), the same level of 
marine mammal bycatch reduction should be maintained with the longer 
pinger lanyards. NMFS convened the Pacific Offshore Cetacean Take 
Reduction Team (Team) in February 1996 to prepare a draft plan to 
reduce cetacean bycatch in the CA/OR DGN fishery. NMFS will continue to 
reconvene this Team on an annual basis to monitor the effectiveness of 
the Plan's strategies to reduce marine mammal bycatch. The Team will 
also evaluate the fishery's progress towards meeting the marine mammal 
bycatch reduction goals of the MMPA.
    At its June 1-2, 1998, meeting, the Team recommended that the final 
rule should be amended to allow pingers to be attached within 30 ft 
(9.14 m) and 36 ft (10.97 m) of the floatline and leadline, 
respectively, in order to increase the safety of pinger deployment.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), finds for 
good cause under 5 U.S.C. Sec. 553(b)(B) that providing prior notice 
and an opportunity for public comment on this action is impracticable 
and contrary to the public interest because allowing pingers to be 
attached farther away from the net avoids an occupational hazard posed 
by the existing regulation. An additional Federal Register notification 
with an advance comment period would only prolong a risk to fishermen's 
safety without countervailing benefits to marine mammals. Setting and 
retrieving a drift gillnet in the CA/OR DGN fishery is already a 
dynamic and sometimes dangerous operation. On most vessels, two crew 
members are actively involved in setting the net: as the net is payed 
out into the water, one operates the mechanical net reel and the other 
snaps buoys and light-sticks to the floatline. Because the net is 
continually moving during this operation, a crew member's clothing, 
hands, arms, or legs can easily snag on an extender or on the net 
slack, and the crew member injured or taken overboard with the net. In 
this fishery, drift gillnet fishermen have been entangled in the net 
and injured and/or dragged overboard during the routine setting of the 
net. Requiring additional gear (e.g., pingers) to be attached directly, 
or nearly directly, to the floatline and leadline increases the hazard 
of this already dynamic and sometimes dangerous operation. Allowing 
pingers to be placed a greater distance away from the net decreases the 
probability that crew members will be accidentally entangled in the net 
and injured and/or dragged overboard.
    The affected public was already involved in the formulation of this 
rule via mandatory workshops for vessel operators in the drift gillnet 
fishery in August and September 1998. Seventy percent of the drift 
gillnet permit holders participated in these workshops; all were 
informed of the workshops and afforded the opportunity to participate. 
At the workshops, the fishermen and NMFS discussed the proposal to 
allow pingers to be attached farther away from the net. Many of the 
participants confirmed that the proposal would make pinger deployment 
safer and more efficient. No fishers opposed the modification.
    Because this rule prevents injury to fishermen and is not expected 
to decrease the effectiveness of pingers, the AA finds for good cause 
under 5 U.S.C. 553(d)(3) that delaying the effective date of this rule 
for 30 days is unnecessary. Further, because the rule allows pingers to 
be placed a greater distance away from the net, it relieves a 
restriction and under 5 U.S.C. 553(d)(1) is not subject to a delay in 
effectiveness. Accordingly, the AA makes this action effective upon the 
date it is filed for public inspection with the Office of the Federal 
Register.
    As this rule is not subject to the requirement to provide prior 
notice and an opportunity for public comment under 5 U.S.C. 553, or any 
other law, the analytical requirements of the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., are inapplicable.
    This rule has been determined to not be significant for purposes of 
E.O. 12866.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229 continues to read as 
follows:

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

    2. In Sec. 229.31, paragraphs (c)(2) and (3) are revised, 
paragraphs (c)(4) and (5) are redesignated as paragraphs (c)(7) and 
(8), and new paragraphs (c)(4) through (6) are added to read as 
follows:

[[Page 3433]]

Sec. 229.31  Pacific Offshore Cetacean Take Reduction Plan.

* * * * *
    (c) * * *
    (2) While at sea, operators of drift gillnet vessels with gillnets 
onboard must carry enough pingers on the vessel to meet the 
requirements set forth under paragraphs (c)(3) through(6) of this 
section.
    (3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of 
the floatline and spaced no more than 300 ft (91.44 m) apart.
    (4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of 
the leadline and spaced no more than 300 ft (91.44 m) apart.
    (5) Staggered Configuration. Pingers attached within 30 ft (9.14 m) 
of the floatline and within 36 ft (10.97 m) of the leadline shall be 
staggered such that the horizontal distance between them is no more 
than 150 ft (45.5 m).
    (6) Any materials used to weight pingers must not change its 
specifications set forth under paragraph (c)(1) of this section.
* * * * *
    3. Figure 1 to part 229 is revised to read as follows:

    Dated: January 14, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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[FR Doc. 99-1382 Filed 1-21-99; 8:45 am]
BILLING CODE 3510-22-C