[Federal Register Volume 65, Number 199 (Friday, October 13, 2000)]
[Rules and Regulations]
[Pages 60889-60892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26400]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 000928277-0277-01; I.D. 091100A]
RIN 0648-AO67


Atlantic Highly Migratory Species; Pelagic Longline Fishery; Sea 
Turtle Protection Measures

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

ACTION:  Emergency rule; request for comments.

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SUMMARY: NMFS issues emergency regulations to implement a time and area 
closure for pelagic longline fishing, within the Northeast Distant 
Statistical Sampling (NED) Area. Additionally, this rule requires all 
pelagic longline vessels that have been issued Federal highly migratory 
species (HMS) fishing permits and that fish in the Atlantic Ocean, 
including the Gulf of Mexico and Caribbean Sea, to carry on board 
dipnets and line clippers meeting NMFS design and performance 
standards. These regulations are necessary to reduce the bycatch and 
bycatch mortality of loggerhead and leatherback sea turtles by the 
Atlantic pelagic longline fishery.

DATES: This emergency rule is effective October 10, 2000, through April 
9, 2001, except that the amendment to Sec. 635.21(c)(5) is effective 
November 24, 2000, through April 9, 2001. Comments must be received no 
later than 5 p.m. on January 8, 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, Karyl Brewster-
Geisz, 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 Fishery Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR 
part 635.

Pelagic Longline Fishery

    Pelagic longline gear is the dominant 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., gear configuration, hook depth, timing of sets) to 
target preferentially yellowfin tuna, bigeye tuna, or swordfish.
    Observer data and vessel logbook data indicate that pelagic 
longline fishing for Atlantic swordfish and tunas results in catch of 
such non-target finfish species, as bluefin tuna, billfish, undersized 
swordfish, and of protected species, including threatened and 
endangered sea turtles. The bycatch of fish that are hooked but not 
retained due to economic or regulatory factors contributes to overall 
fishing mortality. Such bycatch mortality may significantly impair the 
rebuilding of overfished finfish stocks. Additionally, the bycatch of 
protected species (sea turtles or marine mammals) may significantly 
impair the recovery of these species.
    Consistent with national standard 9 of the Magnuson-Stevens Act, 
NMFS has implemented measures to reduce bycatch and bycatch mortality 
to the extent practicable in the Atlantic pelagic longline fishery. In 
1999, NMFS implemented a time and area closure in the Mid-Atlantic 
bight for the month of June to reduce bycatch of Atlantic bluefin tuna 
(64 FR 29090, May 28, 1999). Additionally, NMFS implemented a year-
round time and area closure in the northeastern Gulf of Mexico (DeSoto 
Canyon), effective November 1, 2000; a year-round time and area closure 
along the east coast of Florida, effective February 1, 2001; and a 3-
month time and area closure off Georgia, South Carolina, and a portion 
of North Carolina (Charleston Bump), effective February 1, 2001 (65 FR 
47214, August 1, 2000).

Sea Turtle Bycatch Reduction

    Under the Endangered Species Act (ESA), NMFS is required to address 
fishery-related take of sea turtles that are listed as threatened or 
endangered. Although a high percentage of hooked sea turtles are 
released alive, NMFS remains concerned about serious injuries of 
turtles taken by pelagic longline gear. On November 19, 1999, NMFS re-
initiated consultation under section 7 of the ESA based on preliminary 
reports observing that incidental take of loggerhead sea turtles by the 
Atlantic pelagic longline fishery during 1999 had exceeded levels 
anticipated in the Incidental Take Statement previously issued for the 
HMS FMP. Additionally, the consultation considered the impacts of the 
pelagic longline rulemaking that was in preparation because it was 
recognized that certain time and area closures, if implemented, could 
affect the overall interaction rates of the pelagic longline fleet with 
sea turtles.
    National standard 9 of the Magnuson-Stevens Act requires that 
conservation and management measures, ``to the extent practicable, (A) 
minimize bycatch and (B) to the extent bycatch cannot be avoided, 
minimize the mortality of such bycatch.'' Sea turtles are defined as 
bycatch in the Magnuson-Stevens Act because they may not be retained 
and must be released. In certain times and areas, the Atlantic pelagic 
longline fishery has relatively high rates of sea turtle bycatch, with 
associated mortality.
    In its most recent Biological Opinion (BO) on management of the 
Atlantic HMS fisheries, completed June 30, 2000, NMFS concluded that 
operation of the pelagic longline fishery jeopardized the continued 
existence of threatened loggerhead and endangered leatherback sea 
turtles. This conclusion was based on the current status of the 
loggerhead and leatherback sea turtle populations in the Atlantic 
Ocean, Caribbean Sea, and Gulf of Mexico, the status of the northern 
subpopulation of loggerhead sea turtles, and the anticipated 
continuation of current levels of injury and mortality of both species 
described in the environmental baseline and cumulative effects section 
of the BO. The future trend of species abundance considers the current 
rate of bycatch in HMS fisheries and the potential shifts in effort 
estimated in the Final Supplemental Environmental Impact Statement on 
the Regulatory Amendment to the Atlantic Tunas, Swordfish, and Sharks 
Fishery Management Plan.

[[Page 60890]]

    Since the June 30, 2000, BO was issued, NMFS has concluded that 
further analyses of observer data and additional population modeling of 
loggerhead sea turtles are needed to determine more precisely the 
impact of the pelagic longline fishery on sea turtles. Consequently, 
NMFS has re-initiated consultation. NMFS anticipates completing the 
consultation and issuing a new BO in early 2001. Until the consultation 
is completed and appropriate long-term measures can be determined, NMFS 
is implementing these emergency measures in the short-term to reduce 
sea turtle bycatch and bycatch mortality in the pelagic longline 
fishery.
    After the June 30, 2000, BO was issued, NMFS conducted a series of 
seven scoping workshops in locations where pelagic longline vessels 
make landings and which could potentially be affected by implementation 
of the reasonable and prudent alternatives identified in that BO. NMFS 
received numerous comments that the alternatives identified in the June 
30, 2000, BO would have significant economic impacts and would 
potentially eliminate segments of the Atlantic pelagic longline fleet. 
Commentors questioned the validity of the June 30, 2000, BO conclusions 
and suggested alternative measures that NMFS could analyze to reduce 
sea turtle bycatch. These alternative measures included gear deployment 
modifications, such as fishing deeper and colder waters, increasing the 
number of hooks between floats, using different bait, avoiding warm 
core eddies, and using line clippers to remove gear on captured sea 
turtles. Additionally, NMFS received comments that agency guidance on 
sea turtle handling and release has been confusing and that 
clarification of guidelines would reduce the number of sea turtles 
released with fishing gear attached. The measures implemented in this 
rule are based in part on the consideration of these comments.

Time and Area Closure and Gear Requirements

    The goal of this regulation is to reduce the incidental take and 
mortality of sea turtles captured by pelagic longlines. The first 
measure is a time and area closure that will reduce the number of sea 
turtles caught by the pelagic longline fleet in the NED area. The NED 
area has a historically high level of incidental sea turtle captures. 
The regulation will close an L-shape area to vessels that have been 
issued Federal HMS permits and use pelagic longline gear. The closed 
area is bounded by the following coordinates: 45 deg.00' N. lat., 
49 deg.00' W. long.; 45 deg.00' N. lat., 43 deg.00' W. long.; 
43 deg.00' N. lat., 43 deg.00' W. long.; 43 deg.00' N. lat., 47 deg.00' 
W. long.; 41 deg.00' N. lat., 47 deg.00' W. long.; 41 deg.00' N. lat., 
49 deg.00' W. long.; 45 deg.00' N. lat., 49 deg.00' W. long. This area 
is closed to pelagic longline fishing from October 10, 2000, through 
April 9, 2001.
    The second measure is designed to reduce the mortality rate of 
captured sea turtles. All Atlantic pelagic longline vessels that have 
been issued Federal HMS permits by [insert date 45 days after date of 
filing in the Federal Register] must carry on board dipnets and line 
clippers that meet NMFS design and performance standards and must 
comply with requirements for the use of these dipnets and line clippers 
and for the handling of incidentally caught sea turtles. Dipnets and 
line clippers will enable the vessel captain and crew to disengage sea 
turtles caught or entangled in their gear. Technical descriptions of 
the dipnet and line clipper gear are available from NMFS (see 
ADDRESSES) and are also included in this rule. The starting date for 
this requirement allows fishermen ample opportunity to purchase or 
fabricate the gear.

Classification

    These emergency regulations are published under the authority of 
the Magnuson-Stevens Act and the Atlantic Tunas Convention Act. The 
Assistant Administrator (AA) has determined that these regulations are 
necessary to reduce, to the extent practicable, the bycatch and bycatch 
mortality of sea turtles in the pelagic longline fishery.
    NMFS prepared an Environment Assessment for this emergency rule 
that describes the impact on the human environment and found that no 
significant impact would result. This emergency rule is of limited 
duration and is expected to result in a reduction of overall sea turtle 
bycatch and bycatch mortality associated with the pelagic longline 
fisheries. NMFS intends to complete the consultation on HMS fisheries 
in early 2001, and any reasonable and prudent alternatives to jeopardy 
to sea turtles would be implemented prior to the primary pelagic 
longline fishing season (July through October) in the NED area.
    NMFS also prepared a Regulatory Impact Review for this action which 
assesses the economic costs and benefits of the action. In the time 
period between January 1, to March 31, 1998, and October 1, to December 
31, 1998, 12 vessels made 13 trips to the NED area. During the same 
time periods in 1999, 8 vessels made 10 trips to the NED area. The 
estimated gross revenues for this fishery in this timeframe were 
$819,620 in total and averaged $68,302 per vessel in 1998 and were 
$794,678 in total and averaged $99,335 per vessel in 1999.
     In 1998, 11 vessels fished in the L-shape closed area within the 
NED area, and 7 vessels fished in the L-shape closed area in 1999. The 
estimated gross revenues for these vessels from the L-shape closed area 
from October 1 to March 31 were $525,771 in total and averaged $47,797 
per vessel in 1998 and were $548,439 in total and averaged $78,348 per 
vessel in 1999. Closing this area for the duration of the emergency 
rule beginning October 10, 2000, could result in losses of 
approximately 25 to 40 percent in annual gross revenues per vessel, 
when considering catch taken in 1998 or 1999. However, this assumes 
that these fishermen would not fish in any other portion of the NED 
area or in another statistical area. This is not realistic, especially 
considering the fact that the logbooks indicate that the fishermen have 
historically fished both inside and outside the closed area within the 
same trip. NMFS believes that, although some revenues may be lost as a 
result of this closure, it is likely that fishermen will be able to 
compensate for lost revenues by fishing in portions of the NED area 
that remain open or by fishing in other statistical areas.
    Requiring the use of line clippers and dipnets to release hooked 
turtles is not expected to increase costs substantially. 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).
    Closing this area is likely to cause some individual fishermen, 
processors, dealers, and suppliers to experience a slight increase in 
costs and possibly a large decrease in gross revenues. This emergency 
rule should not affect the fishery as a whole because the fishermen can 
and do fish in other areas. Also, it does not limit the amount of fish 
that may be landed. Finally, this emergency rule is of limited 
duration. The modification of the definition of pelagic longline gear 
will not result in any economic impacts not previously considered.
    This emergency rule has been determined to be significant for the 
purposes of Executive Order 12866.
    NMFS issues this emergency rule, effective for 180 days, as 
authorized by section 305(c) of the Magnuson-Stevens Act. This 
emergency rule may be extended for an additional 180 days provided the 
public has had an

[[Page 60891]]

opportunity to comment on the emergency rule and, at the time of 
extension, a plan amendment or proposed regulations to address sea 
turtle bycatch and bycatch mortality on a permanent basis is being 
actively pursued. Public comments on this emergency rule will be 
considered in determining whether to maintain or extend this emergency 
rule to reduce sea turtle bycatch. Responses to comments will be 
provided if the emergency rule is revoked, modified, or extended. 
Because no general notice of proposed rulemaking is required to be 
published in the Federal Register for this emergency rule, the 
analytical requirements of the Regulatory Flexibility Act are not 
applicable and no Regulatory Flexibility Analysis was prepared.
    The AA finds that there is good cause to waive the requirement to 
provide prior notice and an opportunity for public comment pursuant to 
authority set forth at 5 U.S.C. 553(b)(B), as such provisions would be 
contrary to public interest. This emergency rule is necessary to reduce 
the anticipated impacts of the pelagic longline fishery on listed sea 
turtles. The NED area closure is scheduled to be in effect October 10, 
2000, in order to reduce sea turtle bycatch and bycatch mortality in 
the remaining portion of the fishing season in the NED area. The months 
of July through November, are historically high periods of sea turtle 
interactions. If this action is delayed, then the expected reduction in 
sea turtle bycatch and bycatch mortality will not occur, contrary to 
the public interest, because the highest level of fishing activity in 
the NED area will have already occurred.
    The AA, under 5 U.S.C. 553(d)(3), finds that it would be contrary 
to the public interest to delay the effective date of the time and area 
closure within the NED area for the 30 days normally required. The AA 
finds that these measures are necessary to reduce sea turtle bycatch 
and bycatch mortality. Given NMFS's ability to communicate rapidly 
these regulations to fishing interests through the HMS Fax network, 
NOAA weather radio, press releases, mailing lists, and the HMS 
Infoline, the AA has determined there is good cause for a partial 
waiver of the 30-day delay in the effective date for the area closure 
because such delay would be contrary to the public good.
    NMFS has determined that this emergency rule is consistent to the 
maximum extent practicable with the coastal zone management programs of 
those Atlantic, Gulf of Mexico, and Carribean 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: October 10, 2000.
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. 635.2, a new definition for ``Northeast Distant closed 
area'' is added alphabetically to read as follows:


Sec. 635.2  Definitions.

* * * * *
    Northeast Distant closed area means the Atlantic Ocean area bounded 
by straight lines connecting the following coordinates in the order 
stated: 45 deg.00' N. lat., 49 deg.00' W. long.; 45 deg.00' N. lat., 
43 deg. 00' W. long.; 43 deg.00' N. lat., 43 deg.00' W. long.; 
43 deg.00' N. lat., 47 deg.00' W. long.; 41 deg.00' N. lat., 47 deg.00' 
W. long.; 41 deg.00' N. lat., 49 deg.00' W. long.; 45 deg.00' N. lat., 
49 deg.00' W. long.
* * * * *

    3. In Sec. 635.21, paragraph (c)(2)(v) is added, and paragraph 
(c)(5) is added to read as follows:


Sec. 635.21   Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (2) * * *
    (v) In the Northeast Distant closed area from October 10, 2000, 
local time, through April 9, 2001.
* * * * *
    (5) Sea turtle take mitigation measures. The following measures to 
reduce sea turtle post-release mortality are effective November 24, 
2000 through April 9, 2001.
    (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 aboard all 
Federally permitted vessels engaged in pelagic longline fishing and 
must be used to disengage any hooked or entangled sea turtles as close 
as possible to the hook to prevent any harm to the 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 design standards for line clippers. The minimum 
design standards are as follows:
    (1) A protected cutting blade. The cutting blade must be curved, 
recessed, contained in a holder, or otherwise afforded some protection 
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 capable of cutting 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 that meet the requirements of this section 
nets are:
    (1) An 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 be no more than 3 inches x 3 
inches (7.62 cm 7.62 cm).
    (ii) Handling requirements. (A) All incidentally taken sea turtles 
brought aboard for dehooking and/or disentanglement must be handled in 
a manner to prevent injury and promote post-hooking survival.
    (B) When practicable, 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 such a manner as to 
preclude

[[Page 60892]]

safe boarding without causing further damage/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. 00-26400 Filed 10-10-00; 3:01 pm]
BILLING CODE: 3510-22 -S