[Federal Register Volume 66, Number 62 (Friday, March 30, 2001)]
[Rules and Regulations]
[Pages 17370-17373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7943]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 010319072-1072-01; I.D. 110600A]
RIN 0648-A076


Atlantic Highly Migratory Species; Pelagic Longline Fishery; Sea 
Turtle Protection; Shark Drift Gillnet Fishery

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: NMFS issues an interim final rule that requires the possession 
and use of line clippers and dipnets on board all pelagic longline 
vessels that have been issued Federal fisheries permits for Atlantic 
highly migratory species (HMS); requires specific methods for handling, 
resuscitating, and releasing sea turtles; reduces the level of observer 
coverage in the Atlantic shark drift gillnet fishery from 100 percent 
year-round to 100 percent during the right whale calving season and a 
statistically significant level during the rest of the year; and 
modifies the definition of pelagic longline gear to remove the high-
flyer component.
    The gear and sea turtle handling requirements will minimize the 
mortality of, or injury to, sea turtles that have been hooked or 
entangled by pelagic longline gear. The reduction in observer coverage 
requirements in the shark drift gillnet fishery reduces costs to 
industry while maintaining statistically valid levels of coverage. The 
change in the definition of pelagic longline gear is necessary for 
enforcement of gear prohibitions in closed areas.

DATES: Effective beginning 12:01 a.m. local time on April 1, 2001, 
except for amendments to 635.21(c)(5) and 635.71(a)(33) and (a)(34) 
which are effective beginning 12:01 a.m. local time on April 10, 2001. 
Comments on this interim final rule will be accepted through April 30, 
2001.

ADDRESSES: Written comments on this action must be mailed to 
Christopher Rogers, Acting Chief, NMFS Highly Migratory Species 
Management Division, 1315 East-West Highway, Silver Spring, MD 20910; 
or faxed to 301-713-1917. Comments will not be accepted if submitted 
via email or the Internet.
    Copies of the environmental assessment and regulatory impact review 
prepared for this action may be obtained from Christopher Rogers.

FOR FURTHER INFORMATION CONTACT: Margo Schulze-Haugen or Tyson Kade at 
301-713-2347.

SUPPLEMENTARY INFORMATION: The Atlantic swordfish and tuna fisheries 
are managed under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic 
Tunas Convention Act. The Atlantic shark drift gillnet fishery is 
managed under the authority of the Magnuson-Stevens Act. The Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks is 
implemented by regulations at 50 CFR part 635.

Pelagic Longline Fishery

    Pelagic longline gear is one of the major commercial fishing gear 
used by U.S. fishermen in the Atlantic Ocean to target HMS. The gear 
consists of a mainline, often many miles long, suspended in the water 
column by floats and from which baited hooks are attached on leaders 
(gangions). Though not completely selective, longline gear can be 
modified (e.g., through gear configuration, hook depth, timing of sets) 
to target preferentially yellowfin tuna, bigeye tuna, or swordfish.

Sea Turtle Bycatch Reduction

    Observer data and vessel logbook data indicate that pelagic 
longline fishing for Atlantic swordfish and tunas results in the 
bycatch of protected species, including threatened and endangered sea 
turtles. In certain times and areas, the Atlantic pelagic longline 
fishery has relatively high rates of sea turtle bycatch, with 
associated mortality. Although a high percentage of hooked sea turtles 
are released alive, NMFS remains concerned about serious injuries of 
sea turtles taken by pelagic longline gear.
    In its most recent Biological Opinion (BO) on Atlantic HMS 
fisheries, completed June 30, 2000, NMFS concluded that operation of 
the pelagic longline fishery jeopardizes the continued existence of 
threatened loggerhead and endangered leatherback sea turtles. However, 
NMFS thereafter concluded that further analyses of observer data and 
additional population modeling of loggerhead sea turtles were needed to 
determine more precisely the impact of the pelagic longline fishery on 
sea turtles. Consequently, NMFS re-initiated consultation. NMFS 
anticipates completing the consultation and issuing a new BO in March 
2001. In the interim,

[[Page 17371]]

NMFS issued an emergency rule (65 FR 60889, October 13, 2000) to reduce 
sea turtle bycatch and bycatch mortality in the pelagic longline 
fishery in the short-term. The emergency rule will expire on April 9, 
2001, unless it is extended. This interim final rule adopts the 
requirements in the emergency rule regarding the possession and use of 
dipnets and line clippers to facilitate the release of sea turtles with 
a minimum of injury.

Gear and Handling Requirements

    Under the emergency rule, all Atlantic pelagic longline vessels 
that have been issued Federal HMS permits are required to carry on 
board dipnets and line clippers that meet NMFS design and performance 
standards and comply with requirements for the use of these dipnets and 
line clippers for the handling of incidentally caught sea turtles. 
Technical descriptions of the dipnet and line clipper gear are 
available from NMFS (see ADDRESSES) and are also included in this 
interim final rule. While specific line clipper devices are not 
available in the commercial market, line clippers meeting the minimum 
design standards of this interim final rule may be fashioned from 
readily available tools and components. Consequently, line clippers may 
be fabricated or obtained and put into use in the fishery at low cost. 
NMFS' minimum design standards are intended to allow users flexibility 
in adapting line clippers and dipnets for optimum use on board 
individual vessels. The emergency rule also reiterates existing 
resuscitation and release requirements.
    NMFS is adopting these requirements because dipnets and line 
clippers better enable the vessel captain, crew, and observers to 
disengage sea turtles hooked or entangled in their gear. All sea 
turtles brought on board for dehooking and/or disentanglement must be 
handled in a manner that prevents injury and promotes post-release 
survival. Active and comatose sea turtles should be brought on board 
immediately and handled in accordance with the procedures specified in 
50 CFR 223.206(d)(1). If a sea turtle is too large or hooked in a 
manner that prevents safe boarding, the line clippers must be used to 
remove as much line as possible prior to releasing the animal.

Definition of Pelagic Longline Gear

    The regulatory text for the final rule implementing the DeSoto 
Canyon, East Florida Coast, and Charleston Bump closures (65 FR 47214, 
August 1, 2000) defines pelagic longline gear in a manner designed to 
avoid applying the vessel monitoring system requirement and fishing 
restrictions to vessels fishing with bottom longline gear. The 
regulations define pelagic longline gear as a longline that is 
suspended by floats in the water column and that is not fixed to or in 
contact with the ocean bottom. As defined, pelagic longline gear 
consists of five components: a power-operated longline hauler, a 
mainline, high-flyers, floats capable of supporting the length of the 
mainline, and leaders (gangions) with hooks. Those regulations further 
state that the removal of any one of these components from a vessel 
constitutes the removal of pelagic longline gear. Vessel operators 
removing one or all of the listed components would be eligible to fish 
with other gear in the closed areas and would not be required to 
operate a VMS while at sea. Since publication of the time and area 
requirements, NMFS has become aware that it is possible to use a 
longline that is suspended by floats without the use of high-flyers. 
Operators of fishing vessels could potentially utilize the remainder of 
the defined components of pelagic longline gear to target tunas, 
swordfish and sharks in the closed areas, thereby undermining the 
objective of bycatch reduction and reducing the benefits of the 
closures. Removal of the term ``high-flyer'' from the list of 
components constituting pelagic longline gear would avoid this 
potential problem. NMFS proposed this regulatory change among other 
changes in a notice of proposed rulemaking published December 7, 2000 
(65 FR 76601). During the comment period, NMFS received one comment in 
support of this change and no objections or concerns were raised. 
Therefore, NMFS has included this change in this interim final rule. 
This definition change will have no measurable impact on the 
environment or fishermen, since the intent of the closures is to 
prohibit all pelagic longline fishing by vessels with HMS fishing 
permits when the areas are closed. The environmental, economic, and 
social impacts associated with the area closures were previously 
considered and are discussed in detail in the HMS FMP and Final 
Supplemental Environmental Impact Statement issued for the August 1, 
2000, final rule.

Atlantic Shark Drift Gillnet Fishery

    Drift gillnet fishing for sharks occurs primarily in the waters off 
the coasts of Georgia and Florida. The fishery is comprised of 4 to 12 
vessels that engage in nearshore fishing trips that typically last less 
than 13 hours. Legislation in South Carolina, Georgia, and Florida has 
prohibited the use of commercial gillnets in state waters, causing 
these vessels to operate further offshore in waters under Federal 
jurisdiction. Historically, eight shark species made up over 99 percent 
of sharks caught, including: blacknose, Atlantic sharpnose, blacktip, 
finetooth, scalloped hammerhead, bonnethead, spinner, and great 
hammerhead.

Shark Drift Gillnet Fishery Observer Coverage

    The southeast shark drift gillnet fishery is believed to be 
responsible for the bycatch of at least one right whale, and has 
interacted with sea turtles as well as valuable finfish along the 
Georgia coast for a number of years. The BO issued under section 7 of 
the Endangered Species Act requires 100-percent observer coverage 
during the right whale calving season (November 15 to March 31) as well 
as observer coverage for the rest of the year at a level sufficient to 
provide a reasonably precise estimate of sea turtle takes. In an effort 
to improve the estimates of bycatch and bycatch mortality of protected 
species, juvenile sharks, and other finfish, NMFS established a 100-
percent observer requirement in this fishery year-round. Regulations 
issued on May 28, 1999 (64 FR 29090) prohibited the use of drift 
gillnet gear in the Atlantic shark fisheries unless a NMFS-approved 
observer is on board the vessel.
    However, recent scientific analysis indicates that a 53-percent 
coverage rate, rather than 100-percent coverage, is statistically 
significant and adequate to provide reasonable estimates of sea turtle 
and marine mammal takes in the shark drift gillnet fishery outside the 
right whale calving season. The level of observer coverage necessary to 
maintain statistical significance will be reevaluated annually and 
adjusted accordingly. Based on this analysis, this interim final rule 
reduces the observer coverage requirement so that the 100-percent 
coverage applies from November 15 to March 31, and for the rest of the 
year vessels will be selected for observer coverage according to a 
statistically-based sampling plan.

Comment Period

    NMFS is accepting comments regarding this interim final rule for 30 
days, through April 30, 2001. Comments on the gear requirements were 
requested in the emergency rule published on October 13, 2000 (65 FR 
60889). One comment was received concerning the line clipper 
specifications that said the line clipper blade should be modified to 
better cut heavier line. NMFS also received comments concerning the

[[Page 17372]]

dipnets and line clippers during the technical gear workshop held in 
Silver Spring, MD on January 17 and 18, 2001. While many of the 
comments were positive, it was indicated that better specifications 
could be developed. NMFS intends to conduct further research to develop 
more effective specifications, if possible.

Classification

    This interim final rule is published under the authority of the 
Magnuson-Stevens Act and the Atlantic Tunas Convention Act. The 
Assistant Administrator for Fisheries (AA) has determined that these 
regulations are necessary to reduce, to the extent practicable, the 
bycatch mortality of sea turtles in the pelagic longline fishery. This 
interim final rule also reduces the cost to the industry by reducing 
required observer coverage in the shark drift gillnet fishery to levels 
that will provide reasonable estimates of sea turtle and marine mammal 
takes.
    NMFS prepared an Environmental Assessment that describes the impact 
of the interim final rule on the human environment and found that no 
significant impact would result from the implementation of these 
measures. NMFS also prepared a Regulatory Impact Review that assesses 
the economic costs and benefits of this action. Requiring the use of 
line clippers and dipnets to release hooked turtles is not expected to 
increase fishing costs substantially and will not negatively impact 
small business entities. In a similar rule for the fisheries in the 
Western Pacific, NMFS estimated the total cost for the materials to 
fabricate and/or purchase line clippers and dipnets to be $250 (65 FR 
16347, March 28, 2000). Moreover, affected vessels that complied with 
the emergency rule would already have this gear.
    The reduction in the level of observer coverage in the shark drift 
gillnet fishery is based on recent scientific analysis that indicates 
that a 53-percent coverage rate is adequate to provide reasonable 
estimates of sea turtle and marine mammal takes in this fishery outside 
the right whale calving season. The level of appropriate coverage will 
be reassessed each year to maintain statistical significance. Reduced 
observer coverage will result in reductions in industry costs 
associated with carrying observers on vessels in this fishery.
    Because no general notice of proposed rulemaking is required to be 
published for this rule by 5 U.S.C. 553 or by any other law, the 
analytical requirements of the Regulatory Flexibility Act are not 
applicable and no Regulatory Flexibility Analysis was prepared.
    This interim final rule has been determined to be not significant 
for the purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good 
cause to waive prior notice and opportunity to comment on this action. 
Notice and opportunity to comment was provided on the emergency rule 
(65 FR 60990, October 13, 2000) that first implemented the dipnet and 
line clipper requirement. For the change in the definition of pelagic 
longline gear, comments were solicited in a notice of proposed 
rulemaking (65 FR 76601, December 7, 2000). It would be contrary to the 
public interest to provide additional prior notice and opportunity for 
comment because it would prevent the agency from implementing this 
action in a timely manner to both reduce the post-release mortality of 
sea turtles incidentally captured in the pelagic longline fishery and 
prevent pelagic longline fishing in closed areas.
    Furthermore, the AA finds good cause also under 5 U.S.C. 553(d)(3) 
not to delay the effective date of this interim final rule for 30 days. 
Such delay would also cause a lapse in the gear requirements and 
handling techniques that reduce the post-release mortality of sea 
turtles incidentally captured in the pelagic longline fishery and 
undermine the effectiveness of the closed areas, contrary to the public 
good. NMFS believes there is good cause for waiving the notice and 
comment period and the delay in effectiveness because the reduction in 
the level of observer coverage in the Atlantic shark drift gillnet 
fishery relieves current restrictions.
    NMFS has determined that this interim final rule is consistent to 
the maximum extent practicable with the coastal zone management 
programs of those Atlantic, Gulf of Mexico, and Caribbean coastal 
states that have approved coastal zone management programs.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing Vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics, Treaties.

    Dated: March 26, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended 
as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    1. The authority citation for part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.


    2. In Sec. 635.7, paragraph (d) is revised to read as follows:


Sec. 635.7  At-sea observer coverage.

* * * * *
    (d) Assignment of observers. Once notified of a trip, NMFS will 
assign an observer for that trip based on current information needs 
relative to the expected catch and bycatch likely to be associated with 
the indicated gear deployment, trip duration and fishing area. If an 
observer is not assigned for a fishing trip, NMFS will issue a waiver 
for that trip to the owner or operator of the selected vessel, so long 
as the waiver is consistent with other applicable laws. If an observer 
is assigned for a trip, the operator of the selected vessel must 
arrange to embark the observer and shall not fish for or retain any 
Atlantic HMS unless the NMFS-assigned observer is aboard.
* * * * *

    3. In Sec. 635.21, in paragraph (c) introductory text, the first 
sentence is revised and a new paragraph (c)(5) is added to read as 
follows:


Sec. 635.21  Gear operation and deployment restrictions.

* * * * *
    (c) Pelagic longlines. For purposes of this part, a vessel is 
considered to have pelagic longline gear on board when a power-operated 
longline hauler, a mainline, floats capable of supporting the mainline, 
and leaders (gangions) with hooks are on board. * * *
* * * * *
    (5) The operator of a vessel required to be permitted under this 
part and that has pelagic longline gear on board must undertake the 
following sea turtle bycatch mitigation measures:
    (i) Possession and use of required mitigation gear. Line clippers 
meeting minimum design standards as specified in paragraph (c)(5)(i)(A) 
of this section and dipnets meeting minimum standards prescribed in 
paragraph (c)(5)(i)(B) of this section must be carried on board and 
must be used to disengage any hooked or entangled sea turtles in 
accordance with the requirements specified in paragraph (c)(5)(ii) of 
this section.
    (A) Line clippers. Line clippers are intended to cut fishing line 
as close as possible to hooked or entangled sea turtles. NMFS has 
established minimum

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design standards for line clippers. The Arceneaux line clipper is a 
model that meets these minimum design standards and may be fabricated 
from readily available and low-cost materials (65 FR 16347, March 28, 
2000). The minimum design standards for line clippers are as follows:
    (1) A protected cutting blade. The cutting blade must be curved, 
recessed, contained in a holder, or otherwise designed to minimize 
direct contact of the cutting surface with sea turtles or users of the 
cutting blade.
    (2) Cutting blade edge. The blade must be able to cut 2.0-2.1 mm 
monofilament line and nylon or polypropylene multistrand material 
commonly known as braided mainline or tarred mainline.
    (3) An extended reach holder for the cutting blade. The line 
clipper must have an extended reach handle or pole of at least 6 ft 
(1.82 m).
    (4) Secure fastener. The cutting blade must be securely fastened to 
the extended reach handle or pole to ensure effective deployment and 
use.
    (B) Dipnets. Dipnets are intended to facilitate safe handling of 
sea turtles and access to sea turtles for purposes of cutting lines in 
a manner that prevents injury and trauma to sea turtles. The minimum 
design standards for dipnets are as follows:
    (1) Extended reach handle. The dipnet must have an extended reach 
handle of at least 6 ft (1.82 m) of wood or other rigid material able 
to support a minimum of 100 lbs (34.1 kg) without breaking or 
significant bending or distortion.
    (2) Size of dipnet. The dipnet must have a net hoop of at least 31 
inches (78.74 cm) inside diameter and a bag depth of at least 38 inches 
(96.52 cm). The bag mesh openings may not exceed 3 inches  x  3 inches 
(7.62 cm  x  7.62 cm).
    (ii) Handling requirements. (A) The dipnets required by this 
paragraph should be used to facilitate access and safe handling of sea 
turtles where feasible. The line clippers must be used to disentangle 
sea turtles from fishing gear or to cut fishing line as close as 
possible to a hook that cannot be removed without causing further 
injury.
    (B) When practicable, active and comatose sea turtles must be 
brought on board immediately, with a minimum of injury, and handled in 
accordance with the procedures specified in Sec. 223.206(d) (1).
    (C) If a sea turtle is too large or hooked in a manner that 
precludes safe boarding without causing further damage or injury to the 
turtle, line clippers described in paragraph (c)(5)(i)(A) of this 
section must be used to clip the line and remove as much line as 
possible prior to releasing the turtle.
* * * * *

    4. In Sec. 635.71, paragraphs (a)(33) and (a)(34) are added to read 
as follows:


Sec. 635.71  Prohibitions.

* * * * *
    (a) * * *
    (33) Deploy or fish with any fishing gear from a vessel with 
pelagic longline gear on board without carrying a dipnet and line 
clipper as specified at Sec. 635.21(c)(5)(i).
    (34) Fail to disengage any hooked or entangled sea turtle with the 
least harm possible to the sea turtle as specified at 
Sec. 635.21(c)(5)(ii).
* * * * *
[FR Doc. 01-7943 Filed 3-29-01; 8:45 am]
BILLING CODE 3510-22-P