[Federal Register Volume 69, Number 151 (Friday, August 6, 2004)]
[Rules and Regulations]
[Pages 47797-47798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18032]



[[Page 47797]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 040802222-4222-01; I.D. 072804A]
RIN 0648-AS52


Atlantic Highly Migratory Species (HMS) Fisheries; Pelagic and 
Bottom Longline Fisheries; Correction

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

ACTION: Final rule; amendment.

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SUMMARY: This rule corrects the gear requirements for bottom longline 
fishermen that were inadvertently changed in a July 2004 final rule to 
minimize sea turtle bycatch and bycatch mortality in the pelagic 
longline fishery.

DATES: This final rule is effective August 3, 2004, except for the 
amendment to Sec.  635.21(a)(3), which is effective on August 6, 2004. 
Section 635.21 (d)(3)(iv) is not applicable until further notification 
is published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Karyl Brewster-Geisz at 301-713-2347, 
fax: 301-713-1917.

SUPPLEMENTARY INFORMATION: The Atlantic tuna and swordfish fisheries 
are managed under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic 
Tunas Convention Act (ATCA). Atlantic sharks are managed under the 
authority of the Magnuson-Stevens Act. The Fishery Management Plan for 
Atlantic Tunas, Swordfish, and Sharks (HMS FMP)and Amendment 1 to the 
Atlantic Billfish Fishery Management Plan are implemented by 
regulations at 50 CFR part 635. The Atlantic pelagic and bottom 
longline fisheries for these HMS are also subject to the requirements 
of the Endangered Species Act (ESA) and the Marine Mammal Protection 
Act (MMPA).
    On December 24, 2003 (68 FR 74746), NMFS published a final rule 
implementing the final regulations described in Amendment 1 to the HMS 
FMP. These regulations required bottom longline fishermen to carry and 
use linecutters and dipnets to release sea turtles, prohibited sharks, 
and smalltooth sawfish as of February 1, 2004. At the time of 
publication, these linecutter and dipnet requirements were the same as 
those required in the HMS pelagic longline fishery to release sea 
turtles.
    On July 6, 2004 (69 FR 35599), NMFS published a final rule to 
reduce sea turtle bycatch and bycatch mortality in the Atlantic pelagic 
longline fishery. That rulemaking was based on the results of the 3-
year Northeast Distant (NED) Closed Area research experiment involving: 
interactions of pelagic longline (PLL) fishing gear and Atlantic sea 
turtles, other available studies and information on circle hook and 
bait treatments, and public comments. As part of that rulemaking, NMFS 
redefined the type of equipment and the handling guidelines that 
pelagic longline fishermen must carry and use to release sea turtles. 
These new requirements become effective on August 5, 2004.
    In changing the requirements for pelagic longline fishermen, NMFS 
inadvertently changed the requirements for bottom longline fishermen by 
failing to correct a paragraph cross-reference referring to the 
previous linecutter and dipnet requirements. Thus, the regulatory text 
in the July 6, 2004 (69 FR 35599) final rule indicated that bottom 
longline fishermen would also need to carry the additional equipment 
and use the revised handling procedures established for pelagic 
longline fishermen. This was not the intent of that. Rather, the rule 
was intended to affect only Atlantic HMS fishermen using pelagic 
longline gear. This action corrects the change in the regulatory text 
by replacing the incorrect paragraph cross-reference with the 
linecutter and dipnet regulations from the December 24, 2003 (68 FR 
74746) final rule. This action would not change the intent of either 
the December 24, 2003, or July 6, 2004, final rules, and would result 
in the existing bottom longline regulations remaining in effect. NMFS 
intends to update the gear requirements for the bottom longline fishery 
to reflect recent changes in gear requirements for the pelagic longline 
fishery. However, NMFS has not yet analyzed the potential impacts of 
such an action, or provided an opportunity for public comment on 
potential gear changes in the bottom longline fishery. Thus, any such 
change will need to be part of a future rulemaking.

Classification

    The Assistant Administrator for Fisheries (AA), under 5 U.S.C. 
553(b)(B), finds that providing prior notice and an opportunity for 
public comment on this final rule is unnecessary and contrary to the 
public interest. This rule corrects regulatory text from a July 6, 2004 
(69 FR 35599) pelagic longline rule that would inadvertently change 
existing bottom longline requirements. This action corrects the 
regulatory text to restore the linecutter and dipnet requirements for 
the bottom longline fishery from a December 24, 2003 (68 FR 74746) 
final rule, consistent with the intent of both the December 2003 final 
rule and the July 6, 2004, final rule. As the July 6, 2004, rule will 
not be effective until August 5, 2004, notice and comment are 
unnecessary, because this action would simply maintain regulations 
currently in effect and not have a substantive effect on the fishery. 
Further delay in taking this action is contrary to the public interest. 
Without expedient action, there would be adverse economic impacts on 
fishery participants from implementation of the July 2004 regulations 
and potential confusion for vessel owners and enforcement. These 
corrections would maintain the currently existing regulations and would 
not cause fishermen to purchase additional gear. For the above reasons, 
there is also good cause under 5 U.S.C. 553(d)(3)to waive the 30-day 
delay in effectiveness.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or by any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    This action is not significant under the meaning of Executive Order 
12866.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: August 3, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 635 is amended as 
follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
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.

0
2. Effective August 6, 2004, in Sec.  635.21, paragraph (a)(3) is 
revised to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

    (a) * * *
    (3) All vessels that have pelagic longline gear on board and that 
have been issued, or are required to have, a limited access swordfish, 
shark, or tuna

[[Page 47798]]

longline category permit for use in the Atlantic Ocean including the 
Caribbean Sea and the Gulf of Mexico must possess inside the wheelhouse 
the document provided by NMFS entitled, ``Careful Release Protocols for 
Sea Turtle Release with Minimal Injury,'' and all vessels with pelagic 
or bottom longline gear on board must post inside the wheelhouse the 
sea turtle handling and release guidelines provided by NMFS.
* * * * *

0
3. Paragraph (d)(3) to Sec.  635.21 is revised to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (d) * * *
    (3) The operator of a vessel required to be permitted under this 
part and that has bottom longline gear on board must undertake the 
following bycatch mitigation measures to release sea turtles, 
prohibited sharks, or smalltooth sawfish, as appropriate.
    (i) Possession and use of required mitigation gear. Line clippers 
meeting minimum design specifications as specified in paragraph 
(d)(3)(i)(A) of this section and dipnets meeting minimum standards 
prescribed in paragraph (d)(3)(i)(B) of this section must be carried on 
board and must be used to disengage any hooked or entangled sea 
turtles, prohibited sharks, or smalltooth sawfish, in accordance with 
the requirements specified in paragraph (d)(3)(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, prohibited 
sharks, or smalltooth sawfish. NMFS has established minimum 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, prohibited 
sharks, smalltooth sawfish, 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 lb (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, prohibited sharks, or smalltooth sawfish 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) of this 
title.
    (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.
    (D) If a smalltooth sawfish is caught, the fish should be kept in 
the water while maintaining water flow over the gills and examined for 
research tags and the line should be cut as close to the hook as 
possible.
    (iii) Corrodible hooks. Vessels that have bottom longline gear on 
board and that have been issued, or required to have, a limited access 
shark permit for use in the Atlantic Ocean, including the Caribbean Sea 
and the Gulf of Mexico, must only have corrodible hooks on board.
    (iv) Possess and use a dehooking device that meets the minimum 
design standards. The dehooking device must be carried on board and 
must be used to remove the hook from any hooked sea turtle, prohibited 
shark, or other animal, as appropriate. The dehooking device should not 
be used to release smalltooth sawfish. NMFS will file with the Office 
of the Federal Register for publication the minimum design standards 
for approved dehooking devices. NMFS may also file with the Office of 
the Federal Register for publication any additions and/or amendments to 
the minimum design standards.
* * * * *
[FR Doc. 04-18032 Filed 8-3-04; 2:51 pm]
BILLING CODE 3510-22-S