Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54721 

FY 2009 PROCESSING AND FILING FEE

TABLE—Continued 

Document/action FY 2009 fee 

Shasta and Trinity hardrock 

mineral lease ..................... 25 

Renewal of existing sand and 

gravel lease in Nevada ..... 25 

Multiple Use; Mining (part 

3730): 

Notice of protest of placer 

mining operations .............. 10 

Mining Law Administration 

(parts 3800, 3810, 3830, 

3850, 3860, 3870): 

Application to open lands to 

location .............................. 10 

Notice of location* ................. 15 

Amendment of location ......... 10 

Transfer of mining claim/site 10 

Recording an annual FLPMA 

filing ................................... 10 

Deferment of assessment 

work ................................... 100 

Recording a notice of intent 

to locate mining claims on 

Stockraising Homestead 

Act lands ............................ 25 

Mineral patent adjudication ... 2,760 (more 

than 10 

claims) 

1,380 (10 or 

fewer 

claims) 

Adverse claim ....................... 100 

Protest ................................... 60 

* To record a mining claim or site location, 

you must pay this processing fee along with 

the initial maintenance fee and the one-time 

location fee required by statute. (43 CFR part 

3833). 

[FR Doc. E8–22255 Filed 9–22–08; 8:45 am] 

BILLING CODE 4310–84–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 600 and 635 

[Docket No. 070801432–8663–02] 

RIN 0648–AV92 

Atlantic Highly Migratory Species; 

Atlantic Tuna Fisheries; Pelagic and 

Bottom Longline Fisheries; Gear 

Authorization and Turtle Control 

Devices 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS authorizes green-stick 

gear for the harvest of Atlantic tunas, 

including bluefin tuna (BFT), and 

requires a sea turtle control device in 

Atlantic Highly Migratory Species 

(HMS) pelagic longline (PLL) and 

bottom longline (BLL) fisheries. At this 

time, NMFS is not authorizing harpoon 

gear for the harvest of Atlantic tunas in 

the Highly Migratory Species (HMS) 

Charter/Headboat (CHB) category as 

originally proposed. The purpose of this 

final rule is to ensure fishermen harvest 

Atlantic tunas within quotas, size limits, 

or other established limitations and to 

distinguish green-stick fishing gear from 

current definitions of other authorized 

gear types. This final rule also addresses 

use of sea turtle control devices in the 

PLL and BLL fisheries to achieve and 

maintain low post-release mortality of 

sea turtles thus maintaining consistency 

with the 2004 Biological Opinion (BiOp) 

for the Atlantic PLL fishery and to 

increase safety at sea for fishermen 

when handling sea turtles caught or 

entangled in longline fishing gear. 

NMFS also has revised its list of 

equipment models that NMFS has 

approved as meeting the minimum 

design specifications for the careful 

release of sea turtles caught in hook and 

line fisheries. 

DATES: The amendments to § 600.725; 

§ 635.2; § 635.21 introductory text (first 

sentence), (c)(2)(v)(A), (c)(2)(v)(B), 

(c)(5)(iii)(C)(3), (e)(1)(ii), (e)(1)(iii), 

(e)(1)(v), (g); and § 635.71 are effective 

on October 23, 2008. The amendments 

to § 635.21 introductory text (second 

sentence), (c)(2)(v)(D), (c)(2)(v)(G), 

(c)(5)(i) introductory text, (c)(5)(i)(M), 

(c)(5)(ii)(A), and (c)(5)(ii)(C)(1) are 

effective on January 1, 2009. 

ADDRESSES: For copies of the Final 

Environmental Assessment (EA), or 

other related documents, please write to 

the Highly Migratory Species 

Management Division, 1315 East-West 

Highway, Silver Spring, MD 20910, or 

call at (301)713-2347 or fax to 

(301)713-1917. Copies are also available 

on the HMS website at http:// 

www.nmfs.noaa.gov/sfa/hms/. 

FOR FURTHER INFORMATION CONTACT: 

Randy Blankinship, 727-824-5399, or 

Sarah McLaughlin, 978-281-9260. 

SUPPLEMENTARY INFORMATION: Atlantic 

tunas are managed under the dual 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) and the 

Atlantic Tunas Convention Act (ATCA). 

ATCA authorizes the Secretary of 

Commerce (Secretary) to promulgate 

regulations, as may be necessary and 

appropriate, to implement 

recommendations by the International 

Commission for the Conservation of 

Atlantic Tunas (ICCAT). The authority 

to issue regulations under the 

Magnuson-Stevens Act and ATCA has 

been delegated from the Secretary to the 

Assistant Administrator for Fisheries, 

NOAA (AA). The implementing 

regulations for Atlantic HMS are at 50 

CFR parts 600 and 635. 

On May 28, 1999, NMFS published in 

the Federal Register (64 FR 29090) final 

regulations, effective July 1, 1999, 

implementing the Fishery Management 

Plan for Atlantic Tunas, Swordfish, and 

Sharks (1999 FMP). Among other things, 

these regulations included a list of 

fishing gears authorized for harvest of 

HMS. On October 2, 2006, NMFS 

published in the Federal Register final 

regulations (71 FR 58058), effective 

November 1, 2006, implementing the 

‘‘Final Consolidated Atlantic HMS 

Fishery Management Plan’’ 

(Consolidated HMS FMP), which 

consolidated the management of all 

Atlantic HMS (i.e., sharks, swordfish, 

tunas, and billfish) into one 

comprehensive FMP. 

Background 

Background information about 

green-stick gear authorization and sea 

turtle control device requirements was 

provided in the preamble to the 

proposed rule (73 FR 24924; May 6, 

2008). Please see the proposed rule for 

complete background information. This 

final rule: (1) authorizes green-stick gear 

for the harvest of Atlantic tunas by 

Atlantic Tunas General category 

permitted vessels; (2) authorizes 

green-stick gear for the harvest of 

Atlantic tunas by HMS CHB permitted 

vessels; (3) authorizes green-stick gear 

for harvest of Atlantic tunas by Atlantic 

Tunas Longline category permitted 

vessels (but continues to restrict BFT 

retention to incidental retention only); 

and (4) requires possession and use of 

a sea turtle control device as an addition 

to the already existing requirements for 

sea turtle bycatch mitigation gear in PLL 

and BLL fisheries. This action is 

published in accordance with the 

framework procedures set forth in the 

Consolidated HMS FMP and is 

supported by the analytical documents 

prepared for the Consolidated HMS 

FMP. As described in the Response to 

Comments and Changes from the 

Proposed Rule sections of this 

document, NMFS has reconsidered the 

proposed rule preferred alternative 

regarding authorization of harpoon use 

on HMS CHB vessels and has decided 

to maintain the status quo for 

regulations regarding authorized 

harpoon use as Atlantic tuna fishing 

gear. 


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54722 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 

Fishing Gear Authorization— 

Green-Stick Gear 

Green-stick gear is used primarily to 

catch yellowfin tuna (YFT) and consists 

of a mainline with hooks on leaders or 

gangions trolled from a long fiberglass 

or bamboo pole. Baits used with 

green-stick gear may be artificial or 

natural. Green-stick gear has been used 

in the Atlantic commercial and 

recreational bigeye (BET), albacore, 

YFT, skipjack (collectively referred to as 

BAYS tunas), and BFT fisheries since 

the mid-1990s, but it was not originally 

included as a separate gear on the list 

of authorized HMS fishery gears in the 

1999 FMP. Logbook records show that 

commercial catches of BAYS and BFT 

with green-stick gear continued in the 

Atlantic Tunas General, Atlantic Tunas 

Longline, and the HMS CHB categories 

and were classified either as ‘‘handgear’’ 

catches in the Atlantic Tunas General 

and HMS CHB categories or as 

‘‘longline’’ catches in the Atlantic Tunas 

Longline category, depending on gear 

configuration. In recent years, public 

comments indicate that green-stick gear 

use, managed under those regulations, 

did not well suit the fishing methods 

and locations preferred by fishermen 

wanting to use the gear. 

The most recent YFT stock 

assessment, conducted in 2003, 

indicated that the stock may be 

approaching an overfished condition. 

YFT is the principal species of tropical 

tuna landed by U.S. fisheries in the 

western North Atlantic. 

The latest western Atlantic BFT stock 

assessment conducted in 2006 indicated 

that the stock is overfished and 

overfishing is occurring. The ICCAT 

Standing Committee on Research and 

Statistics (SCRS) considered this and 

other information when making 

recommendations to ICCAT for setting 

total allowable catch (TAC) limits that 

would allow for stock rebuilding. The 

results of the 2008 SCRS BFT stock 

assessment will be available this fall. 

NMFS intends with this final rule to 

allow harvest of Atlantic tunas within 

existing quotas, size limits, or other 

established limitations with a gear that 

is generally efficient in harvesting target 

species and, at the same time, is low in 

bycatch and bycatch mortality. 

Allowing a gear with these 

characteristics may have benefits to 

target and non-target species over gear 

with higher bycatch and bycatch 

mortality levels. As described above, 

green-stick gear is used primarily for 

YFT; however, BFT is caught at times 

and represents a very low percentage of 

the catch with this gear. 

Sea Turtle Control Device 

The 2004 BiOp for the PLL fishery 

found that the long-term continued 

operation of the Atlantic PLL fishery as 

proposed was likely to jeopardize the 

continued existence of leatherback sea 

turtles, a species listed as endangered 

under the Endangered Species Act 

(ESA). Reasonable and prudent 

alternatives (RPAs) under section 7 of 

the ESA (50 CFR 402.02) were 

developed and implemented to avoid 

jeopardy by, among other things, 

reducing post-release mortality of 

leatherback turtles. The RPAs included 

several measures to accomplish these 

goals, one of which was to require the 

use of gear removal measures to 

maximize post-release survival. On July 

6, 2004, NMFS published the final rule 

(69 FR 40736) implementing sea turtle 

bycatch and bycatch mortality 

mitigation measures for the PLL fishery 

and provided for additional rulemaking 

and non-regulatory actions, as 

necessary, to implement any other 

management measures required under 

the 2004 BiOp. 

This final rule requires possession 

and use of a sea turtle control device as 

an addition to the already existing 

requirements for sea turtle bycatch 

mitigation gear. Two types of sea turtle 

control devices, the Turtle Tether and 

T&G Ninja Sticks (Figures 1 and 2), 

whether purchased or constructed, are 

approved to meet this requirement. 

These devices were developed by 

fishermen in the PLL fishery in response 

to safety concerns for fishing vessel 

crew members and for incidentally 

captured sea turtles, as well as to 

facilitate the likelihood of maximum 

gear removal and reducing post-release 

mortality. Subsequently, information 

collected by the NMFS Southeast 

Fisheries Science Center showed that 

use of these two types of sea turtle 

control devices better enabled fishermen 

to remove fishing hooks and line from 

sea turtles by better controlling the 

animals, thus likely reducing 

post-release hooking mortality of sea 

turtles. 


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54724 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 

The function of a turtle control device 

is to control the front flippers of the sea 

turtle so that the animal can be 

controlled at the side of the vessel while 

the gear is removed. Restraint is most 

effective when a pair of turtle control 

devices is used (two sets of turtle 

tethers, two sets of T&G ninja sticks, or 

one of each style). This rule requires 

that one turtle control device be 

possessed and used onboard; however, 

NMFS strongly recommends that two 

devices be possessed and used if vessel 

and crew size allow. 

See Table 1 for a revised list of 

equipment models that NMFS has 

approved as meeting the minimum 

design specifications for the careful 

release of sea turtles caught in hook and 

line fisheries. The list includes both the 

required gears and NMFS-approved 

models of equipment that may be used 

as options to meet the requirements for 

gear that must be carried on board 

vessels participating in the Atlantic PLL 

and BLL fisheries (50 CFR 

635.21(c)(5)(i) and (d)(3)(i)). Equipment 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54725 

may also be fabricated and used by 

individuals according to the minimum 

design specifications (50 CFR 

635.21(c)(5)(i)). The benefit of using 

these gears is to maximize safe and 

efficient gear removal from incidentally 

captured sea turtles thereby minimizing 

the potential for serious injury or 

mortality of the sea turtles. 

TABLE 1. NMFS-APPROVED MODELS

FOR EQUIPMENT NEEDED FOR THE

CAREFUL RELEASE OF SEA TURTLES

CAUGHT IN HOOK AND LINE FISHERIES

Required Item NMFS-Approved 

Models 

(A) Long-handled 

line cutter, with 

one set of replacement 

blades*

LaForce Line Cutter; or 

Arceneaux Line Clipper 

(B) Long-handled 

dehooker for ingested hooks*

ARC Pole Model DeepHooked Dehooker 

(Model BP11)1; or 

NOAA/Bergmann 

Dehooker2 on longhandle 

(C) Long-handled 

dehooker for external hooks3*

ARC Model LJ6P (6 ft 

(1.83 m)); or ARC 

Model LJ36; or ARC 

Pole Model DeepHooked Dehooker 

(Model BP11)1; or ARC 

6 ft. (1.83 m) Pole Big 

Game Dehooker 

(Model P610); or 

Robey Dehooker on 

long-handle; or NOAA/ 

Bergmann Dehooker 

on long-handle 

(D) Long-handled 

device to pull an 

‘‘inverted V’’4*

ARC Model LJ6P (6 

ft.)(1.83 m); or Davis 

Telescoping Boat Hook 

to 96 in. (2.44 m) 

(Model 85002A); or 

West Marine # F6H5 

Hook and # F6-006 

Handle 

(E) Dipnet** ARC 12-ft. (3.66-m) 

Breakdown Lightweight 

Dip Net Model DN6P (6 

ft. (1.83 m)); or ARC 

Model DN08 (8 ft.(2.44 

m)); or ARC Model DN 

14 (12 ft. (3.66 m)); or 

ARC Net Assembly & 

Handle (Model DNIN); 

or Lindgren-Pitman, 

Inc. Model NMFS Turtle Net 

(F) Standard 

automobile tire**

Any standard automobile tire free of exposed steel belts 

TABLE 1. NMFS-APPROVED MODELS

FOR EQUIPMENT NEEDED FOR THE

CAREFUL RELEASE OF SEA TURTLES

CAUGHT IN HOOK AND LINE FISHERIES—Continued 

Required Item NMFS-Approved 

Models 

(G) Short-handled 

dehooker for ingested hooks**

ARC 17-inch (43.18- 

cm) Hand-Held Bite 

Block Deep-Hooked 

Turtle Dehooking Device (Model ST08)1; or 

NOAA/Bergmann 

Dehooker2 on shorthandle 

(H) Short-handled 

dehooker for external hooks5**

ARC Hand-Held Large 

J-Style Dehooker 

(Model LJ07); or ARC 

Hand-Held Large JStyle Dehooker (Model 

LJ24); or ARC 17-inch 

(43.18-cm) Hand-Held 

Bite Block DeepHooked Turtle 

Dehooking Device 

(Model ST08)1; or 

Scotty’s Dehooker; or 

Robey Dehooker on 

short-handle; or NOAA/ 

Bergmann Dehooker 

on short-handle 

(I) Long-nose or 

needle-nose 

pliers**

12-in. (30.48-cm) S.S. 

NuMark Model # 

030281109871; or any 

12-inch (30.48-cm) 

stainless steel longnose or needle-nose 

pliers 

(J) Bolt cutter** H.K. Porter Model 1490 

AC 

(K) Monofilament 

line cutter**

Jinkai Model MC-T 

(L) Two of the following mouth 

openers and 

mouth gags**

(L1) Block of hard 

wood 

Any block of hard wood 

meeting design standards (e.g., Olympia 

Tools Long-Handled 

Wire Brush and Scraper (Model 974174)) 

(L2) Set of (3) canine mouth gags Jorvet Model #4160, 

4162, and 4164 

(L3) Set of (2) 

sturdy dog chew 

bones 

Nylaboner (a trademark owned by T.F.H. 

Publications, Inc.); or 

Gumaboner (a trademark owned by T.F.H. 

Publications, Inc.); or 

Galileor (a trademark 

owned by T.F.H. Publications, Inc.) 

TABLE 1. NMFS-APPROVED MODELS

FOR EQUIPMENT NEEDED FOR THE

CAREFUL RELEASE OF SEA TURTLES

CAUGHT IN HOOK AND LINE FISHERIES—Continued 

Required Item NMFS-Approved 

Models 

(L4) Set of (2) 

rope loops covered with hose 

Any set of (2) rope 

loops covered with 

hose meeting design 

standards 

(L5) Hank of rope Any size soft braided 

nylon rope is acceptable, provided it creates a hank of rope approximately 2 - 4 

inches (5.08 cm - 10.16 

cm) in thickness 

(L6) Set of (4) 

PVC splice couplings 

A set of (4) Standard 

Schedule 40 PVC 

splice couplings (1-inch 

(2.54-cm), 1 1⁄4-inch 

3.175-cm), 1 1⁄2-inch 

(3.81-cm), and 2-inch 

(5.08-cm) 

(L7) Large avian 

oral speculum 

Webster Vet Supply 

(Model 85408); or Veterinary Specialty Products (Model VSP 216- 

08); or Jorvet (Model J51z); or Krusse (Model 

273117) 

(M) Turtle control 

device***

Turtle Tether and extended reach handle; 

or T&G Ninja Sticks 

and extended reach 

handles 

*

Items (A) - (D), and (M) are required for 

turtles not boated. **Items (E) - (L) are required for boated turtles. ***Only one turtle control device is required, 

but NMFS recommends the use of two devices to secure both front flippers. ***Only one turtle control device is required, 

but NMFS recommends the use of two devices to secure both front flippers. 1The pigtail portion of the ARC dehooker 

may be modified by creating a notch in the 

pigtail curl where the shank of the hook comes 

into contact with the dehooker when the line is 

tightly pulled parallel to the handle. 2The NOAA/Bergman dehooker should not 

be used to remove ingested J–hooks. 3The long–handled dehooker for Item B 

would meet the requirement for Item C. 4If a 6–ft (1.83 m) J–Style dehooker is used 

to satisfy the requirement for Item C, it would 

also satisfy the requirement for Item D. 5The short–handled dehooker for Item G 

would meet the requirement for Item H. 

Response to Comments 

A number of individuals and groups 

provided both written and verbal 

comments on the proposed rule during 

the 41-day comment period which 

ended on June 16, 2008. Six public 

hearings were held in Saint Petersburg, 

FL; Manteo, NC; Manahawkin, NJ; 

Gloucester, MA; Belle Chasse, LA; and 

Orlando, FL. Public comments were also 


jlentini on PROD1PC65 with RULES
54726 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 

heard at meetings of the South Atlantic 

Fishery Management Council and the 

HMS Advisory Panel. These comments 

contributed to a change from the 

proposed rule, i.e., NMFS’ decision to 

maintain the status quo regarding 

harpoon authorization for HMS CHB 

permitted vessels. The comments are 

summarized below together with NMFS’ 

responses. The comments are grouped 

by major issue (green-stick gear 

authorization, harpoon authorization, 

and sea turtle control device) and are 

numbered consecutively, starting with 

1, at the beginning of each issue. 

1. Green-Stick Gear Authorization 

Comment 1: NMFS should authorize 

green-stick gear for Atlantic Tunas 

General, HMS CHB, and Atlantic Tunas 

Longline permitted vessels because 

green-stick gear is selective in what 

species fishermen catch, results in 

minimal bycatch and low bycatch 

mortality, and increases fishery 

operational flexibility in harvesting 

Atlantic tunas within established 

limitations. Comments included support 

from the North Carolina Division of 

Marine Fisheries, the South Atlantic 

Fishery Management Council, and 

representatives of several diverse 

constituencies on the HMS AP. 

Response: NMFS considered these 

characteristics of green-stick gear when 

developing the alternatives. Green-stick 

gear is an actively trolled and tended 

gear. When fished, the hooks and baits 

are suspended at or above the surface of 

the water which reduces the likelihood 

of catching species that do not strike 

moving prey at or above the surface of 

the water. Since the gear is tended, 

animals that are caught are quickly 

retrieved to the vessel and either kept, 

if the species is desired, or released, if 

it is undersized or an unintended 

species. Quick retrieval and release of 

unwanted or unintended animals causes 

less physiological stress on an animal 

than some other gears such as longline 

and results in a higher likelihood of 

survival. 

Increased operational flexibility in 

harvesting Atlantic tunas results from 

fishermen having another option or 

choice in the type of fishing gear they 

use, particularly when fishing for YFT. 

This flexibility may be beneficial to help 

offset increasing operational costs due 

to factors such as high fuel prices. The 

availability of green-stick gear as an 

option provides a gear that is low in 

bycatch and bycatch mortality and may 

be chosen by some fishermen for this 

reason. 

Comment 2: Comments were received 

that NMFS is discriminatory against 

Longline category vessels if those 

vessels that do not have longline gear 

onboard are still required to abide by 

the incidental catch requirements and if 

the BFT that they catch are not counted 

against the General category quota 

instead of the Longline quota. The 

premise of these comments is that an 

Atlantic Tunas Longline permitted 

vessel that does not have PLL or BLL 

gear onboard and is fishing with a gear 

that is also authorized in another permit 

category should be treated according to 

the regulations for that other category. 

In this case, the other category would be 

General category, thus allowing BFT to 

be targeted and counted against the 

General category’s quota. 

Response: The action to authorize 

green-stick gear for Atlantic tunas does 

so within existing quotas, size limits, or 

other established limitations. Currently 

established retention limits are some of 

the existing limitations of permit 

categories such as Atlantic Tunas 

Longline and are not modified by this 

action. This includes the incidental 

catch requirements described in the 

response to Comment 3. 

The BFT management structure, 

developed in the 1999 FMP, created 

quota allocations, effort controls, 

retention limits, and size limits 

associated with the various quota 

categories in an effort to rebuild BFT 

while allowing for continued BFT 

harvest. The 1999 FMP also solidified 

the BFT Longline category as incidental 

by definition yet provided for limited 

retention of BFT bycatch. The directed 

BFT fishery is also managed with a suite 

of permits and associated regulations 

such as authorized fishing gears, 

retention limits, restricted fishing days, 

and limited access for Purse Seine 

category. NMFS manages fisheries 

throughout the United States with 

different permit types and various 

regulatory restrictions respective to 

those permit types in order to achieve 

the goals of applicable domestic 

fisheries laws and international 

agreements. The type of permit(s) that 

an individual holds may be changed at 

the discretion of the vessel owner, 

according to established regulations, 

among individual persons and/or 

vessels over time. As such, the 

distinctive management measures 

among permit types are not 

discriminatory. 

Comment 3: Comments were received 

that the target catch requirements of the 

Atlantic Tunas Longline permit should 

not apply if a vessel is fishing with 

green-stick gear and without longline 

gear onboard. 

Response: The action to authorize 

green-stick gear for Atlantic tunas does 

so within existing quotas, size limits, or 

other established limitations. Currently 

established retention limits are one such 

existing limitation on permit categories 

such as Atlantic Tunas Longline and are 

not modified by this action. The 

Atlantic Tunas Longline permit allows 

for the take of BFT only as incidental to 

other targeted species. The target catch 

requirements of this permit are found at 

§ 635.23(f), which states that one large 

medium or giant BFT per vessel per trip 

may be landed, provided that at least 

2,000 lb (907 kg) of species other than 

BFT are legally caught, retained, and 

offloaded from the same trip and are 

recorded on the dealer weighout slip as 

sold. Two large medium or giant BFT 

per vessel per trip may be landed, 

provided that at least 6,000 lb (2,727 kg) 

of species other than BFT are legally 

caught, retained, and offloaded from the 

same trip and are recorded on the dealer 

weighout slip as sold. Three large 

medium or giant BFT per vessel per trip 

may be landed, provide that at least 

30,000 lb (13,620 kg) of species other 

than BFT are legally caught, retained, 

and offloaded from the same trip and 

are recorded on the dealer weighout slip 

as sold. 

These existing target catch 

requirements, along with existing 

retention limits, quota management 

structure, size limits, restricted fishing 

days, and other established limitations, 

serve to constrain the harvest of, effort 

on, and bycatch of BFT. These 

constraints are necessary amid ongoing 

concerns about the overfished status of 

BFT and the continuing need to avoid 

increases in BFT bycatch and levels of 

directed effort that might negatively 

impact BFT stocks. The existence of 

these constraining regulations is a major 

factor in the decision to allow the use 

of green-stick gear as provided by this 

final rule. Additionally, modifying 

retention limits or target catch 

requirements as provided for at 

§ 635.23(f)(2) was not within the scope 

of the proposed rule; therefore, 

adjustment of the target catch is not 

considered in this final rule. 

Comment 4: NMFS should maintain 

the target catch requirements of the 

Atlantic Tunas Longline permit. 

Response: As stated in the response to 

Comment 2, this action authorizes 

green-stick gear within existing quotas, 

size limits, or other established 

limitations. This action does not change 

the existing BFT incidental catch 

requirements of the Atlantic Tunas 

Longline Permit and thus, maintains the 

incidental nature of the Longline 

category. The existing target catch 

requirements will remain in effect and 

are listed in the response to Comment 

2 above. 


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Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Rules and Regulations 54727 

Comment 5: NMFS should avoid 

increasing directed fishing pressure on 

BFT. 

Response: Directed fishing pressure 

on BFT is not expected increase beyond 

a minimal amount as a result of this 

rule. Green-stick gear is used primarily 

to harvest YFT, although catch of BFT 

also occurs at a much lower level. 

According to coastal and pelagic 

logbook reports, which include reports 

from Atlantic Tunas General, HMS CHB, 

and Atlantic Tunas Longline permitted 

vessels, YFT and BFT represent 

approximately 82 percent and 2 percent 

(or less) of the catch, respectively, both 

by number and weight. The use of 

green-stick gear by Atlantic Tunas 

General, HMS CHB, and Atlantic Tunas 

Longline permitted vessels has occurred 

since at least the mid-1990s. Any 

potential for an increase in directed 

fishing pressure on BFT as a result of 

this rule exists within the General 

category where directed BFT fishing is 

allowed. Both Atlantic Tunas General 

and HMS CHB (when selling BFT) 

permitted vessels operate within the 

BFT General category. Increases in 

directed fishing pressure on BFT are not 

expected in the Longline category due to 

the target catch requirements in place 

for Atlantic Tunas Longline permitted 

vessels as described in the response to 

Comment 3 above. Also, targeted fishing 

for BFT is not allowed in the Gulf of 

Mexico, an important BFT spawning 

area; therefore, increases in directed 

fishing pressure for BFT would not 

occur in the Gulf of Mexico as a result 

of this final rule. 

While the potential for an increase in 

directed or incidental effort on BFT 

exists considering the increase in 

number of hooks allowed, such 

increases in effort over existing 

practices are expected to be minor 

because the gear is already being used 

and has been used since the mid-1990s. 

There is potential for additional vessels 

not currently using green-stick gear to 

begin to do so as more fishermen 

become aware of green-stick gear 

efficiency in catching Atlantic tunas and 

of the high quality of fish product that 

can be delivered to the dock resulting in 

higher ex-vessel value. Green-stick gear 

could also be deployed at times and in 

ways that enable more hooks to be 

fished during a trip, such as while a 

vessel is in transit between fishing 

locations where other authorized gears 

may be deployed. Such increases in 

effort, if they were to occur, are 

expected to be minor as green-stick gear 

use has developed to its current level 

over a period of several years. The 

growth of green-stick gear use is 

somewhat constrained by the capital 

investments involved in rigging a vessel 

to use green-stick gear. A green-stick rig 

with fiberglass pole and hydraulic 

haul-back capability is estimated to cost 

$5,300 $9,300. 

If directed use of green-stick gear for 

YFT or BFT increases above its current 

level, there may be benefits in improved 

bycatch mortality compared to some 

other fishing gears. Bycatch mortality of 

released fish is anticipated to be low 

given that baits on green-stick gear are 

trolled at high speed and deployed at or 

slightly above the surface of the water. 

Fish are hooked as they strike the baits 

which most frequently results in 

hooking locations in the jaw or other 

mouth area and does not often result in 

deep-hooking. Additionally, because 

green-stick gear is usually rigged with 

power haul-back capability, the 

mainline can be quickly retrieved, 

thereby enabling undersized or 

non-target fish to be released with a 

minimum of stress and physical trauma. 

Due to this characteristic of green-stick 

gear, NMFS anticipates that there may 

be beneficial effects for target and 

non-target species when compared to 

other fishing gears, such as longline and 

rod and reel, because improving 

post-release survival of fish reduces 

overall fishing mortality. Finally, while 

authorization of green-stick gear is not 

expected to result in a great increase in 

BFT landings, if an increase were to 

occur, repeated quota under-harvests in 

recent years indicate that sufficient 

quota exists to allow for some additional 

landings despite the latest bluefin tuna 

stock assessment that indicates that the 

stock is overfished. 

Comment 6: NMFS should maintain 

enforceability of PLL closed areas by 

ensuring that PLL gear is not onboard 

vessels fishing with green-stick gear in 

PLL closed areas. 

Response: This final rule does not 

change the requirement that PLL or BLL 

gear be removed from an Atlantic Tunas 

Longline permitted vessel when the 

vessel is in a PLL or BLL closed area. 

Green stick gear will, however, by 

allowed in the closed area. The rule 

distinguishes green-stick gear from PLL 

and BLL by defining it as ‘‘an actively 

trolled mainline attached to a vessel and 

elevated or suspended above the surface 

of the water with no more than 10 hooks 

or gangions attached to the mainline. 

The suspended line, attached gangions 

and/or hooks, and catch may be 

retrieved collectively by hand or 

mechanical means. Green-stick does not 

constitute a PLL or a BLL as defined in 

this section or as described at 

§ 635.21(c) or § 635.21(d), respectively.’’ 

The distinguishing characteristics that 

separate the gears are that green-stick 

gear is actively trolled and does not 

have floats capable of supporting the 

mainline, as with PLL gear, nor weights 

and/or anchors capable of maintaining 

contact between the mainline and the 

ocean bottom, as with BLL gear. NMFS 

believes that these characteristics are 

recognizable and, with the definition 

and distinctions made between the 

gears, enforceability of longline 

restrictions in the closed areas will be 

maintained. 

Comment 7: NMFS should maintain 

the enforceability of the circle hook 

requirement on PLL vessels. 

Response: This action does not 

change the requirement that only circle 

hooks may be used on PLL gear. It does 

provide for the possession of up to 20 

J-hooks for use only with green-stick 

gear if green-stick gear is onboard. 

NMFS believes that the definition of 

green-stick gear allows the gear to be 

recognized by enforcement agents and 

distinguishes it from PLL, thus enabling 

enforcement agents to know when the 

possession of 20 J-hooks is allowed. 

Comment 8: NMFS should maintain 

enforceability of the live bait 

prohibition in the Gulf of Mexico. 

Response: This action does not 

change the live bait prohibition in the 

Gulf of Mexico. In order to enhance 

enforcement capability of the live bait 

prohibition and prevent the use of bait 

catching rigs such as ‘‘sabiki’’ rigs 

(which use small hooks) under the guise 

of green-stick gear, a minimum hook 

size is established for J-hooks that are 

allowed to be used with green-stick gear 

onboard Atlantic Tunas Longline 

Permitted vessels. Under this provision, 

the use of J-hooks less than 1.5 inch 

(38.1 mm, approximately the size of a 

standard 2/0 to 3/0 J-hook), when 

measured in a straight line over the 

longest distance from the eye to any 

other part of the hook, is prohibited. 

Comment 9: NMFS should require 

that any BFT caught on green-stick gear 

in the GOM be released regardless of 

permit category in order to protect BFT 

in the spawning area. 

Response: This action authorizes 

green-stick gear for Atlantic tunas 

within existing quotas, size limits, or 

other established limitations. Directed 

fishing for BFT remains prohibited in 

the GOM. This action does not change 

existing provisions to protect BFT in the 

GOM. Green-stick gear is authorized for 

use by Atlantic Tunas General, HMS 

CHB, and Atlantic Tunas Longline 

permitted vessels. Atlantic Tunas 

General category vessels may not retain 

BFT in the GOM. Atlantic-wide, when 

selling BFT, HMS CHB permitted 

vessels operate under the rules for 

General category, and General category 


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vessels may not retain BFT in the GOM. 

This means that HMS CHB vessels may 

not retain BFT for commercial purposes 

in the GOM. For recreational fishing in 

the GOM, which also applies to HMS 

CHB permitted vessels, one ‘‘trophy’’ 

BFT (73 in CFL) is allowed to be 

retained per vessel per year only as 

incidental to targeted fishing for other 

species. 

Comment 10: Comments were 

received in support of increased data 

collection on green-stick gear fishing to 

include designating a green-stick gear 

code. Also, comments were received in 

support of improved data collection on 

green-stick gear fishing that would 

allow for appropriate monitoring of 

effort and landings to enable changes or 

problems in the fishery to be addressed 

as soon as possible. In addition, 

improved data collection could show 

benefits of green-stick gear such as low 

bycatch and the possible elimination of 

protected species interactions. 

Response: NMFS has designated a 

gear code which will facilitate improved 

gear-specific data collection via dealer 

reporting through trip tickets in the 

southeast and dealer reporting systems 

in the northeast. The gear code may also 

aid in improved gear-specific data 

collection via logbooks. Data collection 

on green-stick gear and other gears is 

important for assessing the need for and 

appropriateness of future management 

measures. 

Harpoon Authorization 

Comment 1: NMFS received a wide 

range of comments on authorization of 

harpoon gear for use by HMS CHB 

permitted vessels, from full support to 

complete opposition. The majority of 

comments received on the harpoon 

authorization issue opposed the action, 

as described below. Comments in 

support of harpoon use authorization for 

all HMS CHB trips included: 1) the BFT 

fishing industry needs all the help it can 

get and NMFS should do all it can to 

maximize fishing opportunities within 

current quotas, particularly because 

harpoon fishing is already limited by 

the need for good weather conditions; 2) 

the action would provide fishermen the 

flexibility of gear choice, which would 

be beneficial given current high 

operating costs, and would increase 

opportunities to harvest BFT within the 

General category daily retention limit 

(currently 3 BFT/vessel); and 3) 

authorization of harpoon gear on HMS 

CHB vessels would not significantly 

increase competition for current HMS 

CHB permit holders as very few vessel 

owners would make the large capital 

investment to outfit their vessels to use 

harpoon gear in the HMS CHB category. 

Comments supporting harpoon 

authorization for HMS CHB vessels on 

non-for-hire trips only include: 1) this 

alternative would work well for HMS 

CHB captains and crew, who could 

harpoon BFT in the early season (when 

BFT are more readily caught at the 

water’s surface in the Gulf of Maine) 

and switch to rod and reel use in the 

late summer for use on charter trips; and 

2) there is no reason for harpoons to be 

used on charter trips with paying 

passengers aboard. 

The majority of comments received on 

the harpoon authorization issue 

opposed the action. Comments include: 

1) NMFS needs to take a more 

precautionary approach in regard to the 

BFT fishery, which is overfished, and in 

which overfishing is occurring; 2) this 

action would be inconsistent with 

efforts to rebuild BFT; 3) new measures 

should not be adopted in the name of 

quota utilization; 4) the action could 

lead to shorter seasons and lower 

retention limits for HMS CHB vessels; 

and 5) the action could lead to 

disruption by new harpooners of 

Harpoon category fishing activities, and/ 

or dilution of the historical HMS CHB 

business by historical harpooners 

(contradicting the rationale NMFS used 

in establishing a separate HMS CHB 

permit category). 

Response: NMFS has considered these 

comments, some of which were also 

made at the April 2008 HMS Advisory 

Panel meeting. Based on the relative 

lack of public support, and on 

consideration of the various concerns 

raised by NMFS and the public, 

including concerns about bycatch, 

enforcement and safety (discussed 

further in responses below), and BFT 

stock status generally, NMFS has 

decided, at this time, to maintain the 

status quo regarding authorized harpoon 

use, i.e., authorized harpoon use by the 

General and Harpoon categories only. 

Comment 2: NMFS received several 

comments specifically regarding 

potential increases in BFT dead 

discards, bycatch (of undersized fish), 

and bycatch mortality that may result 

from the proposed harpoon 

authorization. Comments expressed 

concern that now is not the time to 

increase fishing effort on BFT as it could 

further strain the resource. Examples of 

this resource strain were increased 

mortality of BFT that are harpooned and 

lost, undersized BFT that are harpooned 

unintentionally by less experienced 

crew while targeting commercial-sized 

BFT, or BFT that are discarded in the 

process of highgrading. Comments from 

those supportive of the action stated 

that authorization of harpoon gear on 

HMS CHB vessels would not 

significantly increase BFT bycatch and 

bycatch mortality as effort is unlikely to 

substantially increase due to the large 

capital investment for owners to outfit 

their vessels to use harpoon gear in the 

HMS CHB category. 

Response: NMFS does not have 

information with which to estimate 

quantitatively the potential increase in 

discards, bycatch, and bycatch mortality 

that could result from HMS CHB 

harpoon use. NMFS anticipates that the 

number of HMS CHB operators that 

would outfit their vessels with harpoon 

gear would be low. However, to the 

extent that inexperienced users may 

inadvertently strike an undersized BFT, 

bycatch and bycatch mortality likely 

would increase with the proposed 

authorization. NMFS believes that 

harpoon use by HMS CHB vessels could 

result in increased discard mortality of 

BFT over the discard mortality that 

occurs with gear currently authorized 

for HMS CHB use (rod and reel, bandit 

gear, and handline) and green-stick gear 

to be authorized by this final rule. 

Comment 3: NMFS received several 

comments regarding enforceability of 

the harpoon authorization. Comments 

opposing harpoon authorization stated 

that enforcement would be difficult if 

harpoons are authorized on non-for-hire 

trips only. Some of these comments 

further state that the proposed action 

may provide an incentive for captains to 

convert recreational trips to commercial 

trips and highgrade, or to use harpoon 

gear expressly for the satisfaction of 

paying passengers. Some indicated that 

harpoon authorization could exacerbate 

both the nonreporting of catch and 

landings and the illegal sale of BFT. A 

comment supportive of the action 

suggested that NMFS could require that 

the pulpit be stowed in the upright 

position while the vessel is on for-hire 

trips. 

Response: Field and dockside 

enforcement of harpoon authorization 

for only certain HMS CHB trips would 

be more challenging than if the 

authorization applied to all HMS CHB 

trips. Although NMFS recognizes the 

possibility that harpoon authorization 

on for-hire trips would increase the 

incentive to discard and/or not report 

fish since HMS CHB crew may fill either 

the commercial or recreational retention 

limit on any given fishing day, it is not 

possible to estimate quantitatively the 

increase in discards and non-reporting 

that may occur. As NMFS is not taking 

action to authorize harpoon use on HMS 

CHB vessels at this time, consideration 

of specific gear stowage requirements is 

not necessary. 

Comment 4: NMFS received a few 

comments regarding safety implications 


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of the proposed action. Some believed 

that liability and safety of passengers is 

the captain’s responsibility, and as it 

would be very unlikely that a paid 

passenger would be allowed to use the 

harpoon gear, authorization of harpoon 

gear should be for all trips. A few 

commenters asked why NMFS raised 

safety concerns regarding HMS CHB use 

of harpoon gear but not of green-stick 

gear. 

Response: NMFS must ensure that 

management measures, to the extent 

practicable, promote the safety of 

human life at sea. Authorization of 

harpoon gear on HMS CHB vessels, 

particularly if authorized on all trips, 

presents the possibility of charter 

passengers walking out to and standing 

on a pulpit and/or handling harpoon 

gear, which may be capable of passing 

an electric current. Therefore, it is 

appropriate for NMFS to consider safety 

concerns and to engage the public in a 

discussion of these issues. In the 

proposed rule, NMFS selected harpoon 

authorization as the preferred 

subalternative on non-for-hire trips only 

as it would reduce the incentive for both 

crew and passengers to use the gear for 

recreational-sized BFT fishing, thus 

reducing potential safety concerns. 

Green-stick gear has been used on 

charter vessels for several years, 

including on for-hire trips, and neither 

existing green-stick gear use or use of 

the gear as proposed raised novel or 

substantial safety concerns. 

Comment 5: If NMFS authorizes 

harpoon gear use on HMS CHB vessels, 

NMFS should allow permit holders a 

category change (not currently allowed 

for the 2008 fishing year as the May 31 

deadline has passed) so that vessels 

could make use of the HMS CHB 

harpoon authorization this year. 

Response: As NMFS is not 

implementing the proposed HMS CHB 

harpoon authorization at this time, 

allowances for permit category changes 

are not needed at this time. 

Sea Turtle Control Device 

Comment 1: NMFS should require a 

sea turtle control device in PLL and BLL 

fisheries to achieve and maintain low 

post-release mortality of sea turtles. 

Response: The proposed and final 

rule do require a sea turtle control 

device in the PLL and BLL fisheries to 

achieve and maintain low post-release 

mortality of sea turtles. The 

implementation of sea turtle bycatch 

mitigation measures in the PLL and BLL 

fisheries, in accordance with the 2004 

BiOp, which includes the mandatory 

use of circle hooks in the PLL fishery, 

possession and use of sea turtle 

handling and release gears in the PLL 

and BLL fisheries, and mandatory 

participation in protected species safe 

handling and release workshops, has 

reduced the post-release mortality of sea 

turtles. Sea turtle control devices have 

been recommended in these fisheries 

and are now required to better enable 

fishermen to remove fishing gear from 

sea turtles. Maximizing the removal of 

fishing gear from sea turtles results in 

improved post-release mortality. 

Comment 2: NMFS should require 

two sea turtle control devices instead of 

one in order to better control sea turtles 

by securing both front flippers. 

Response: NMFS considered requiring 

two sea turtle control devices instead of 

one in order to better control sea turtles 

by securing both front flippers, but did 

not prefer this as an alternative. Some 

BLL vessels are small and requiring two 

devices onboard is impractical, at this 

time, due to limited available space. 

Also, requiring the use of two devices 

when there are often only two crew 

members onboard raises concerns about 

safety at sea, especially in heavy seas 

and/or currents when one crew member 

must remain at the wheel while the 

other crew member retrieves the 

longline gear. In such circumstances, 

one crew member could reasonably be 

expected to use one sea turtle control 

device and remove fishing gear from the 

sea turtle, while the use of two devices 

and removal of the fishing gear would 

be an unreasonable expectation. 

Comment 3: NMFS should not require 

a sea turtle control device in PLL and 

BLL fisheries because the shark fishing 

fleet cannot afford the device to meet 

the requirement. 

Response: NMFS considered cost of 

the sea turtle control devices when 

developing this requirement and made 

options available for construction of the 

devices with inexpensive materials. The 

amount of time required for 

construction of these devices is 

minimal. Fishermen may already have 

many of these materials on hand. 

Construction costs for the T&G ninja 

sticks and turtle tether range from $25 

to $85. Only one device is required to 

be carried onboard and used. 

Changes from the Proposed Rule (73 FR 

24922; May 6, 2008) 

NMFS made seven changes to the 

proposed rule as outlined below. 

1. Following requests from an 

organization representing a portion of 

the Atlantic tunas commercial handgear 

fishery and discussion by the HMS 

Advisory Panel at its October 2007 

meeting, NMFS proposed authorization 

of harpoon gear for the commercial 

harvest of Atlantic tunas, including 

BFT, for HMS CHB permitted vessels. 

NMFS requested public comment on the 

potential authorization of the gear, for 

both for-hire and non-for-hire fishing 

trips. After considering comment 

received during the comment period 

and discussions of the issue at the April 

2008 HMS Advisory Panel meeting, 

both of which revealed little public 

support for the action, and the 

implications of authorizing a directed 

fishing gear that is used almost 

exclusively to target BFT, at this time, 

NMFS has decided to maintain the 

status quo regarding authorized harpoon 

gear use in the Atlantic tuna fisheries. 

For more information, please see the 

Response to Comments section. The 

selection of the status quo alternative 

regarding this subject does not preclude 

NMFS from taking future action 

regarding fishing gear authorization, in 

general or specifically regarding 

harpoon use. 

2. In § 635.21, a clarification of how 

green-stick gear will be allowed for 

Atlantic Tunas Longline permitted 

vessels is made that establishes a 

minimum allowable hook size 

restriction for J-hooks used with 

green-stick gear. J-hooks used with 

green-stick gear onboard Atlantic Tunas 

Longline permitted vessels may be no 

smaller than 1.5 inch (38.1 mm) when 

measured in a straight line over the 

longest distance from the eye to any 

other part of the hook. In the Gulf of 

Mexico, PLL vessels are prohibited from 

using live bait in order to reduce the 

incidental catch of Atlantic billfish. 

NMFS is concerned about the effect that 

the 20 J-hook allowance, as described 

above, may have on enforcement of the 

live bait prohibition because fishing rigs 

that catch live bait utilize small J-hooks. 

The possession of such J-hooks is 

currently prohibited. NMFS’ concern is 

that bait catching rigs could be used 

under the guise of green-stick gear, thus 

making enforceability of the live bait 

prohibition more difficult. In the 

proposed rule, NMFS sought public 

comment on establishing a minimum 

hook size for J-hooks allowed with 

green-stick gear onboard Atlantic Tunas 

Longline permitted vessels and received 

comments in favor of such a restriction. 

The minimum size limit for J-hooks in 

specific units of length is necessary as 

hook sizes such as 1/0, 2/0, 3/0, etc. are 

not standardized among hook 

manufacturers. The 1.5 inch minimum 

length limit will prevent the use of 

small hooks used with bait catching rigs 

which are normally 1/0 sized hooks or 

smaller. A 1.5 inch J-hook is 

approximately the size of a 2/0 or 3/0 

standard J-hook depending on the 

manufacturer and style. J-hooks used 


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with green-stick gear when fishing for 

Atlantic tunas (usually 7/0 to 11/0) are 

much larger than the 1.5 inch minimum 

size limit established by this action. 

This minimum J-hook size limit only 

applies to Atlantic Tunas Longline 

permitted vessels; however, it applies to 

these vessels throughout the Atlantic. 

3. In § 635.71, a prohibition is 

established for the possession and use of 

J-hooks onboard a vessel that has 

pelagic longline gear onboard, except 

when green-stick gear is onboard. The 

addition of this prohibition is necessary 

to better distinguish between 

regulations that apply to PLL vessels 

when green-stick gear is or is not 

onboard and to establish the way that 

green-stick gear will be managed. 

Regulations requiring the possession 

and use of circle hooks were established 

at 69 FR 40734 (July 6, 2004). These 

regulations required vessels fishing in 

the Northeast Distant gear restricted area 

(NED) and that have PLL gear onboard 

to only possess and use 18/0 or larger 

circle hooks with an offset not to exceed 

10 degrees and when fishing outside the 

NED and having PLL gear onboard, to 

only possess and use 18/0 or larger 

circle hooks with an offset not to exceed 

10 degrees and 16/0 or larger non-offset 

circle hooks. 

4. In § 635.71, a prohibition of the use 

of J-hooks with pelagic longline is 

established. This prohibition is 

established for the same reason 

described in change number 3 above. 

5. In § 635.71, a prohibition of the 

possession of more than 20 J-hooks 

onboard a vessel when possessing both 

pelagic longline gear, as described at 

§ 635.21 (c), and green-stick gear is 

established. This prohibition establishes 

the way that green-stick gear will be 

managed. 

6. In § 635.71, a prohibition of the use 

of more than 10 hooks at one time with 

each green-stick gear is established. This 

prohibition establishes the way that 

green-stick gear will be managed. 

7. In § 635.71, a prohibition of the 

possession and use of J-hooks smaller 

than 1.5 inch (38.1 mm) onboard 

Atlantic Tunas Longline permitted 

vessels is established for the same 

purpose as explained in change number 

2 above. 

Classification 

This final rule is published under the 

authority of the Magnuson-Stevens Act 

and ATCA. NMFS has determined that 

this final rule is necessary for the 

management of Atlantic tunas and 

protection and conservation of sea 

turtles consistent with the 

Magnuson-Stevens Act, including the 

national standards; the ESA; and other 

applicable law. 

NMFS prepared an EA for this action 

and a notice of availability was 

published with the proposed rule on 

May 6, 2008 (73 FR 24922). This final 

rule has been determined to be not 

significant for purposes of Executive 

Order 12866. This rule does not contain 

policies with federalism implications 

under E.O. 13132. There are no new 

information collection requirements 

proposed by this rule for Purposes of the 

Paperwork Reduction Act. 

In compliance with 5 U.S.C. 604, a 

Final Regulatory Flexibility Analysis 

(FRFA) was prepared for this rule. The 

FRFA analyzes the anticipated impacts 

of the final rule and any significant 

alternatives to the final rule that could 

minimize significant economic impacts 

on small entities. Each of the statutory 

requirements of section 604 has been 

addressed, and a summary of the FRFA 

is provided below. 

Section 604(a)(1) requires the Agency 

to state the objective and need for the 

rule. As stated in the preamble of the 

final rule, the objective of this final rule 

is to ensure fishermen harvest Atlantic 

tunas within quotas, size limits, or other 

established limitations and to 

distinguish green-stick fishing gear from 

current definitions of other authorized 

gear types. Additionally, the final rule 

addresses sea turtle control devices in 

the PLL and BLL fisheries to achieve 

and maintain low post-release mortality 

of sea turtles thus maintaining 

consistency with the 2004 Biological 

Opinion (BiOp) for the Atlantic PLL 

fishery and to increase safety at sea for 

fishermen when handling sea turtles 

caught or entangled in longline fishing 

gear. 

Section 604(a)(2) requires the Agency 

to summarize significant issues raised 

by the public in response to the Initial 

Regulatory Flexibility Analysis (IRFA), a 

summary of the assessment of the 

agency of such issues, and a statement 

of any changes made in the rule as a 

result of such comments. NMFS 

received several comments on the 

proposed rule and draft EA during the 

public comment period. A summary of 

these comments and the Agency’s 

responses are included above. NMFS 

did not receive any comments specific 

to the Initial Regulatory Flexibility 

Analysis (IRFA). During the public 

comment period, NMFS received an 

economic comment that NMFS should 

not require a sea turtle control device in 

PLL and BLL fisheries because the shark 

fishing fleet cannot afford the device to 

meet the requirement. NMFS 

understands that there may be some 

negative economic impact from this 

requirement and has attempted to 

minimize these impacts by allowing the 

devices to be constructed with low cost 

materials. Construction costs for the sea 

turtle control devices range from $25-85 

and may be constructed with materials 

that fishermen may already have on 

hand, thus reducing the construction 

cost. NMFS believes that the economic 

impacts to fishermen are not likely to be 

large with this final action. No changes 

were made to this final action as a result 

of this comment. 

Section 604(a)(3) of the Regulatory 

Flexibility Act requires the Agency to 

describe and provide an estimate of the 

number of small entities to which the 

final rule will apply. The final rule to 

authorize green-stick fishing gear for the 

harvest of Atlantic tunas, including 

BFT, and require sea turtle control 

devices in Atlantic HMS PLL and BLL 

fisheries could directly affect 3,616 

Atlantic Tunas General, 3,901 HMS 

CHB, and 218 Atlantic Tunas Longline 

category permit holders (permit 

numbers as of November 30, 2007). All 

of these permit holders are considered 

small business entities according to the 

Small Business Administration’s 

standard for defining a small entity. 

Section 604(a)(4) of the Regulatory 

Flexibility Act requires the Agency to 

describe the projected reporting, record 

keeping, and other compliance 

requirements of the final rule, including 

an estimate of the classes of small 

entities which will be subject to the 

requirements of the report or record. 

None of the alternatives considered for 

this final rule will result in additional 

reporting and recordkeeping 

requirements. New compliance 

requirements will occur under the 

action to require the possession and use 

of a sea turtle control device onboard 

PLL and BLL vessels; however, the 

economic impacts are not expected to be 

significant. 

Section 604(a)(5) of the Regulatory 

Flexibility Act requires the Agency to 

describe the steps taken to minimize 

any significant economic impact on 

small entities consistent with the stated 

objectives of applicable statutes. NMFS 

believes that in regard to the portion of 

the final rule requiring a sea turtle 

control device, impacts on small entities 

are minimized through the development 

of options for fishermen to construct the 

device at minimal cost, thus simplifying 

compliance for all entities including 

small entities. Similarly, the design 

standards used to allow construction of 

a sea turtle control device at minimal 

cost satisfies the aforementioned 

objectives of this rulemaking while, 

concurrently, complying with the 

Magnuson-Stevens Act and ESA. 


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As described below, NMFS 

considered eight different alternatives to 

authorize fishing gear in Atlantic tuna 

fisheries to increase operational 

flexibility in the fishery while still 

achieving the objectives of the 

Consolidated HMS FMP; to allow 

harvest of Atlantic tunas with a gear that 

is generally efficient in harvesting target 

species and, at the same time, is low in 

bycatch and bycatch mortality; and to 

require a sea turtle control device in the 

PLL and BLL fisheries to achieve and 

maintain low post-release mortality of 

sea turtles. Below, NMFS provides 

justification for selection of the final 

action to achieve the desired objectives. 

Alternative A1 is a no action, or the 

status quo alternative. This alternative 

would maintain existing regulations for 

harvesting Atlantic tunas, thereby 

allowing green-stick gear use only as 

allowed under the current definitions 

and regulations for longline or handgear 

based on the gear configuration. Under 

Alternative A1, there would be no 

change in the existing regulations and, 

as such, no change in the current 

baseline economic impacts. 

The no action alternative would 

instead continue to consider green-stick 

gear as being within the longline 

definition if 3 or more hooks are 

attached and as handgear if 2 or fewer 

hooks are attached. The allowable use of 

the gear in this way impedes operational 

and economic efficiency in the Atlantic 

Tunas General category or HMS CHB 

category because fishermen have used 

green-stick gear rigged with up to 10 

hooks historically for Atlantic tunas. 

Under alternative A1, the social and 

economic impacts are expected to be 

minimal, although unquantified social 

and economic impacts may occur to 

Atlantic Tunas General category and 

HMS CHB permitted vessel holders with 

the status quo because they would not 

be allowed to use green-stick gear with 

3 hooks or more, as they have 

historically, unless they purchased an 

Atlantic Tunas Longline permit and 

other associated limited access permits 

for swordfish and shark. This alternative 

was not selected because other 

alternatives increase operational 

flexibility in the fishery while still 

achieving the objectives of the 

Consolidated HMS FMP and allow 

fishermen additional opportunities to 

fulfill U.S. quota allocations. 

Under selected Alternative A2, which 

was preferred in the proposed rule, 

green-stick gear will be defined and 

authorized for use in the commercial 

Atlantic tuna fishery for BAYS and BFT 

by Atlantic Tunas General category 

vessels. Vessels fishing under the 

Atlantic Tunas General category will 

continue to be subject to all current 

HMS regulations for that category (such 

as bag and size limits). NMFS does not 

anticipate greatly increased landings 

from Atlantic Tunas General category 

vessels as a result of this rule because 

green-stick gear has been used in HMS 

fisheries since at least the mid-1990s. 

While NMFS does not anticipate greatly 

increased landings, Alternative A2 

could result in a minor increase of 

overall effort deployed by this category 

of permit holders. This could occur if 

additional fishermen become aware of 

green-stick gear efficiency in catching 

Atlantic tunas and of the high quality of 

fish product that can be delivered to the 

dock as a result. Higher quality fish 

product often commands high ex-vessel 

prices, and thus could potentially 

improve the profitability of trips. Under 

Alternative A2, authorization of 

green-stick gear use is expected to have 

generally positive social impacts as the 

gear is popular with Atlantic Tunas 

General category permit holders in areas 

of the Atlantic where it has been used. 

The economic impacts under 

Alternative A2 are expected to be 

positive. Authorization of green-stick 

gear for harvest of Atlantic tunas will 

allow Atlantic Tunas General category 

permit holders additional opportunities 

for harvest. Tuna and other species 

harvested commercially with green-stick 

gear are usually high in quality and 

command higher prices due to the speed 

with which the fish are brought to the 

vessel, stored on ice, transported to the 

dock, and sold. Economic benefits may 

be realized through continued, and 

possibly increased, harvest of Atlantic 

tunas. Use of this gear may result in an 

unknown number of additional trips. 

The economic benefits may be minimal, 

however, as green-stick gear has been 

used in U.S. Atlantic tuna fisheries for 

several years and potential increases 

above existing levels of use as a result 

of this rule are expected to be minimal. 

Green-stick gear ranges in cost from 

$1,300-$3,300 for the fiberglass pole. 

Completely outfitting a vessel with 

hydraulic spool and other tackle to use 

the gear would cost between 

$4,000-$6,000 depending on the size of 

the rig. Therefore, the total cost of 

outfitting a vessel to fish with 

green-stick gear would cost between 

$5,300-9,300. Anecdotal information 

indicates that some fishermen may run 

mainlines from outriggers, a flying 

bridge, or a tuna tower, which would 

not be as costly. Outfitting costs are 

discretionary for fishermen as the gear 

is not required to participate in the 

fishery. This gear will be authorized for 

use from properly permitted vessels 

only. The current cost of a Federal 

vessel permit is $28.00 per year. 

Under selected Alternative A3, which 

was a preferred alternative in the 

proposed rule, green-stick gear will be 

defined as in Alternative A2 above and 

authorized for use in the commercial 

Atlantic tuna fishery for BAYS and BFT 

by HMS CHB category vessels. This 

alternative will also authorize 

green-stick gear for recreational harvest 

of Atlantic tunas when an HMS CHB 

permitted vessel is on a for-hire trip. 

NMFS prefers this alternative because 

HMS CHB vessels may sell Atlantic 

tunas whether the vessel is for-hire or 

not-for-hire. Additionally, NMFS 

received public comment that HMS 

CHB vessels desired to have the option 

of using green-stick gear on for-hire 

trips. Vessels fishing under the HMS 

CHB category will continue to be subject 

to all current HMS regulations for that 

category. Alternative A3 is expected to 

have positive social and economic 

impacts similar to those described 

under Alternative A2 above, but with 

the added economic benefits associated 

with authorizing the use of green-stick 

gear for recreational harvest of Atlantic 

tunas even when an HMS CHB 

permitted vessel is on a for-hire trip. 

Under selected Alternative A4, which 

was a preferred alternative in the 

proposed rule, green-stick gear will be 

defined, in this final rule, as in 

Alternative A2 and authorized for use in 

the directed commercial Atlantic BAYS 

tuna fishery and allow for the incidental 

retention of BFT by Atlantic Tunas 

Longline category vessels. Green-stick 

gear can currently be used with more 

than two hooks by Atlantic Tunas 

Longline permitted vessels under 

current target catch and gear (i.e., circle 

hook) requirements. Alternative A4 will 

distinguish green-stick gear from 

longline gear thus allowing green-stick 

gear to be fished in PLL and BLL closed 

areas if existing regulations for removal 

of PLL and BLL gear are met. These 

regulations state that a vessel is 

considered to have PLL gear onboard 

when it has onboard a power-operated 

longline hauler, a mainline, floats 

capable of supporting the mainline, and 

leaders (gangions) with hooks. Likewise, 

a vessel is considered to have BLL gear 

onboard when it has onboard a 

power-operated longline hauler, a 

mainline, weights and/or anchors 

capable of maintaining contact between 

the mainline and the ocean bottom, and 

leader (gangions) with hooks. For closed 

areas respective to both PLL and BLL 

gear, removal of any one of these 

elements constitutes removal of the PLL 

or BLL gear. Atlantic Tunas Longline 

permitted vessels will continue to be 


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subject to current HMS PLL or BLL 

regulations, whichever is applicable, 

including the closed areas and circle 

hook requirements except that up to 20 

J-hooks will be allowed onboard if 

green-stick gear is also onboard for use 

only with the green-stick gear. This 

provision to allow up to 20 J-hooks is 

intended to facilitate the high speed 

trolling methods used when fishing 

with green-stick gear. J-hooks possessed 

or used when green-stick gear is 

onboard may only be used with 

green-stick gear and may be no smaller 

than 1.5 inch (38.1 mm) when measured 

in a straight line over the longest 

distance from the eye to any other part 

of the hook. Current requirements to use 

only circle hooks on PLL gear will 

remain unchanged. 

Alternative A4 is expected to have 

positive social and economic impacts 

particularly for fishermen holding 

Atlantic Tunas Longline permits. Public 

and HMS Advisory Panel member 

support has been expressed for this 

alternative as described in chapter four 

of the Final EA. Authorization of 

green-stick for harvest of Atlantic tunas 

will allow Atlantic Tunas Longline 

category permit holders additional 

opportunities for harvest. Economic 

benefits may be realized in similar 

fashion to Alternatives A2 and A3 above 

through increased need for fish 

processing and the sale of additional 

fishing gear and supplies. The economic 

benefits for the fishing community may 

be minimal, however as green-stick gear 

has been and continues to be used in 

U.S. Atlantic tuna fisheries and 

increases beyond existing levels are 

expected to be minimal. Vessel 

outfitting costs are similar to those 

described in A2 above. 

Alternative B1 would maintain the 

status quo regarding harpoon use in the 

Atlantic tuna fisheries. Under this 

selected alternative, the authorized 

gears for Atlantic tunas fishing by HMS 

CHB permitted vessels would remain 

the same. Harpoon use is currently 

authorized only for vessels permitted in 

the Atlantic Tunas General and Harpoon 

categories. Harpoon gear is selective 

gear that is used to capture only one 

large pelagic fish (primarily BFT, but 

also swordfish) at a time. Bycatch and 

bycatch mortality of commercial 

handgear is considered to be low, 

particularly for harpoons, which are 

thrown individually at a fish, 

determined by the fisherman to be 

greater than the minimum commercial 

size. There is no information or 

evidence of interactions between 

harpoon users targeting Atlantic tunas 

and threatened or endangered sea 

turtles, marine mammals, or other 

protected resources. There were 3,901 

HMS CHB permitted vessels as of 

November 30, 2007. Focusing on the 

area where harpoon gear has historically 

been used to capture commercial-sized 

BFT, there were 91 HMS CHB permitted 

vessels in Maine, 53 in New Hampshire, 

644 in Massachusetts, and 159 in Rhode 

Island. Under Alternative B1, NMFS 

anticipates neutral impacts on permitted 

HMS vessels, which could continue to 

fish under the Atlantic Tunas General 

and Angling category regulations using 

existing authorized gear. Total Atlantic 

BFT General category revenues, which 

included sale of commercial-sized BFT 

by HMS CHB vessels, for the 2006 

fishing year were approximately $2.6 

million. General category BFT revenues 

for 2005 and 2004 were approximately 

$3.8 million and $5.4 million, 

respectively (in nominal dollars). 

General category BFT fishing year 

quotas, adjusted as necessary for 

underharvest, have not been met since 

2004, when landings amounted to 96 

percent of the quota. Atlantic Tunas 

General category landings, as a 

percentage of adjusted General category 

quota, were 33 percent (234 mt out of 

707.3 mt) for 2005, 14 percent for 2006 

(165 mt out of 1,163.3 mt), and 19 

percent for 2007 (121 mt out of 643.6 

mt). 

Alternative B2 would authorize 

harpoon gear for the commercial harvest 

of Atlantic tunas, including BFT, for 

HMS CHB permitted vessels. Available 

vessel trip report data indicate that for 

Atlantic tunas fishing, harpoon gear is 

only used to target BFT. Under this 

alternative, HMS CHB vessels would be 

able to use harpoon gear to fish for and 

retain BFT greater than 73 inches 

curved fork length. HMS CHB vessels 

may currently fish under the Atlantic 

Tunas General category regulations and 

may fill the daily retention limit for 

either the Atlantic Tunas General 

category or the HMS Angling category. 

The size category of the first BFT 

retained determines the fishing category 

applicable to the vessel that day. This 

alternative would not change the 

number or size of BFT allowed to be 

retained on an HMS CHB vessel, but 

would provide HMS CHB fishermen the 

opportunity to use harpoon gear in 

filling the Atlantic Tunas General 

category daily retention limit. 

Sub-alternative B2a would allow 

harpoon gear use on all types of HMS 

CHB trips. Sub-alternative B2b, the 

preferred alternative in the proposed 

rule, would limit harpoon use to 

non-for-hire trips. It is NMFS’ 

understanding that due to safety and 

liability concerns, only vessel captain 

and crew would be involved in harpoon 

fishing (i.e., no other passengers would 

be offered the opportunity to use the 

gear). Under this alternative, there 

would be no incentive to harpoon a 

recreational sized fish (27 to less than 

73 inches) to fill the Angling category 

retention limit (to satisfy expectations of 

individuals chartering the vessel). With 

effort focused on commercial-sized BFT, 

bycatch of undersized fish and 

associated fish mortality is expected to 

be minimal, particularly as the size of 

BFT targeted by for-hire HMS CHB 

vessels fall with in the school and large 

school BFT size classes, i.e. (27-59 

inches). 

The General category quota and 

overall U.S. TAC are designed to allow 

for BFT rebuilding, and the General 

category BFT retention limit is specified 

to allow fishing opportunities over the 

duration of the General category season 

and in all areas, without exceeding the 

General category BFT quota. This 

alternative would not be expected to 

result in an expanded geographic area of 

harpoon use for BFT, which has 

historically been off New England, and 

primarily on the fishing grounds off 

Massachusetts, New Hampshire, and 

Maine. Therefore, authorization of 

harpoon gear in the HMS CHB category 

would not be expected to have 

ecological impacts beyond those 

previously analyzed in the Consolidated 

HMS FMP and in the 2007 Fishing Year 

Atlantic BFT Quota Specifications and 

Effort Controls EA. 

Alternative B2 would have positive 

social and economic impacts, 

specifically for those vessels that have 

success harpooning BFT that may be 

available at the water’s surface. To the 

extent that a fisherman could harpoon 

BFT at the surface when the fish are 

present at the water’s surface, 

Alternative B2 could increase the 

potential of filling the General category 

daily retention limit and of gaining 

more ex-vessel revenue per trip. NMFS 

anticipated that the number of BFT that 

would be caught with harpoon gear by 

HMS CHB vessels would be low. 

Alternative B2 may have slightly 

negative social and economic impacts 

for existing HMS CHB operators due to 

the potential for Atlantic Tunas General 

or Harpoon category permit holders to 

change to the HMS CHB category, 

potentially increasing competition in 

the HMS CHB sector and potentially 

resulting in lower profits for existing 

permit holders. Alternative B2 was not 

selected because, based on public 

comment, NMFS has reconsidered the 

authorization of an additional directed 

fishing gear type for BFT in the HMS 

CHB category at this time. After 

consideration of recent HMS AP 


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discussion and public comment on the 

proposed action, NMFS believes that 

harpoon use by HMS CHB vessels could 

result in increased discard mortality of 

BFT over the discard mortality that 

occurs with gear currently authorized 

for HMS CHB use or with green-stick 

gear. Based on the relative lack of public 

support, and the concerns raised by 

NMFS and the public, including 

bycatch, enforcement, safety, and BFT 

stock status generally, NMFS has 

decided, at this time, to maintain the 

status quo regarding authorized harpoon 

use, i.e., authorized harpoon use by the 

Atlantic Tunas General and Atlantic 

Tunas Harpoon permit categories only. 

Alternative C1, which is the status 

quo alternative, would continue existing 

ecological benefits of the current 

requirements for possession and use of 

sea turtle bycatch mitigation equipment 

such as low post-release mortality of sea 

turtles and other by catch species. 

Alternative C1 is not selected because it 

would not provide for additional 

post-release survival benefits that may 

be achievable under preferred 

Alternative C2. Currently one type of 

sea turtle control device, the turtle 

tether, is recommended for possession 

and use, but is not required. Under the 

status quo, the benefit of better control 

of large sea turtles not boated and 

improvements in hook and fishing gear 

removal that would result in reduced 

post-release mortality would not be 

fully realized, but NMFS is unable to 

quantify the number of sea turtle 

mortalities that might occur in the 

absence of this benefit. 

Under Alternative C1, the social and 

economic impacts would be minimal as 

sea turtle bycatch mitigation gear is 

currently required in the PLL fishery 

and sea turtle control devices are 

recommended, but not required. Any 

safety-at-sea benefit from improved 

control of large sea turtles not boated 

would not be fully realized with 

Alternative C1. 

Under selected Alternative C2, which 

was a preferred alternative in the 

proposed rule, social and economic 

impacts may be positive in that further 

reduction in sea turtle mortalities 

achieved by enabling fishing gear 

removal may aid in continuation of the 

PLL fishery. Reducing the mortality of 

sea turtles in the PLL fishery reduces 

the likelihood that the performance 

targets for incidental take and mortality 

of sea turtles in the PLL fishery that 

were established in the 2004 BiOp are 

exceeded. Exceeding the performance 

targets in the 2004 BiOp could result in 

closure of the PLL fishery in the Gulf of 

Mexico and/or reinitiation of Section 7 

consultation under the Endangered 

Species Act. Also, a safety-at-sea benefit 

from the use of sea turtle control devices 

will be realized as fishermen using the 

gear can more easily control large sea 

turtles while removing fishing hooks 

and lines. Other social and economic 

impacts of Alternative C2 are expected 

to be minimal. It is unknown how many 

vessels currently follow the 

recommendation to possess and use sea 

turtle control devices. Production 

models of the turtle tether cost from 

$200-$250 and may be constructed 

according to the design specifications 

for $40-$70. Production models of the 

T&G ninja sticks may be purchased for 

$175 and may be constructed according 

to the design specifications for 

approximately $25-$85. It is difficult to 

determine the number of Atlantic HMS 

permitted vessels that use longline and 

will be affected by this requirement as 

users of longline gear may possess any 

one of three permits; however, not all 

holders of these permits use longline 

gear. To estimate the total cost of 

outfitting each boat in the longline fleet 

with one sea turtle control device, 

NMFS totaled the number of Atlantic 

Tunas Longline, Shark Directed, or 

Shark Incidental permits, which 

produced an overestimate of the actual 

number of permitted vessels affected by 

the requirement. Based on the number 

of Atlantic Tunas Longline, Shark 

Directed, or Shark Incidental permitted 

vessels as of November 2007, it is 

estimated that the cost of outfitting the 

longline fleet with one turtle control 

device would range from $18,575, if all 

permit holders construct the least 

expensive device, to $185,750, if all 

permit holders purchase the most 

expensive model produced. 

List of Subjects 

50 CFR Part 600 

Fisheries, Fishing, Fishing vessels, 

Foreign relations, Penalties, Reporting 

and recordkeeping requirements. 

50 CFR Part 635 

Fish, Fisheries, Fishing, Fishing 

vessels, Reporting and recordkeeping 

requirements, Management. 

Dated: September 17, 2008. 

Samuel D. Rauch III 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For reasons set out in the preamble, 50 

CFR parts 600 and 635 are amended as 

follows: 

Chapter VI 

PART 600—MAGNUSON-STEVENS 

ACT PROVISIONS 

■ 1. The authority citation for part 600 

continues to read as follows: 

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 

et seq. 

■ 2. In § 600.725, paragraph (v) table, 

under the heading ‘‘IX. Secretary of 

Commerce,’’ entries 1.I and 2 are revised 

and entry 1.M is added to read as 

follows: 

§ 600.725 General prohibitions. 

* * * * * 

(v)* * * 

Fishery Authorized gear types 

* * * * * * * 

IX. Secretary of Commerce 

1. Atlantic Highly 

Migratory Species 

Fisheries (FMP): 

* * * * * * * 

I. Tuna recreational fishery I. Speargun gear (for 

bigeye, albacore, yellowfin, and skipjack 

tunas only); Rod and 

reel, handline (all tunas); 

green-stick gear (HMS 

Charter/Headboat Category only). 

* * * * * * * 

M. Tuna 

green-stick fishery 

M. Green-stick gear. 

2. Commercial 

Fisheries 

(Non-FMP) 

Rod and reel, handline, 

longline, gillnet, harpoon, 

bandit gear, purse seine, 

green-stick gear. 

* * * * * 

PART 635—-ATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 3. 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. 

■ 4. In § 635.2, the definition for 

‘‘Green-stick gear’’ is added in 

alphabetical order to read as follows: 

§ 635.2 Definitions. 

* * * * * 

Green-stick gear means an actively 

trolled mainline attached to a vessel and 

elevated or suspended above the surface 

of the water with no more than 10 hooks 

or gangions attached to the mainline. 

The suspended line, attached gangions 

and/or hooks, and catch may be 

retrieved collectively by hand or 


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mechanical means. Green–stick does not 

constitute a pelagic longline or a bottom 

longline as defined in this section or as 

described at § 635.21(c) or § 635.21(d), 

respectively. 

* * * * * 

■ 5. In § 635.21: 

■ a. Paragraphs (c)(2)(v)(A), (c)(2)(v)(B), 

(c)(2)(v)(D), (c)(2)(v)(G), (c)(5)(i) 

introductory text, (c)(5)(ii)(A), 

(c)(5)(ii)(C)(1), (e)(1)(ii), (e)(1)(iii), and 

(e)(1)(v) are revised. 

■ b. An introductory paragraph and 

paragraphs (c)(5)(i)(M), (c)(5)(iii)(C)(3), 

and (g) are added. 

The revisions and additions read as 

follows: 

§ 635.21 Gear operation and deployment 

restrictions. 

The green-stick gear authorization 

requirements under paragraphs 

(c)(2)(v)(A), (c)(2)(v)(B), (c)(5)(iii)(C)(3), 

(e)(1)(ii), (e)(1)(iii), (e)(1)(v), and (g) of 

this section are effective on October 23, 

2008. The sea turtle bycatch mitigation 

gear requirements under paragraphs 

(c)(2)(v)(D), (c)(2)(v)(G), (c)(5)(i) 

introductory text, (c)(5)(i)(M), 

(c)(5)(ii)(A), and (c)(5)(ii)(C)(1) of this 

section are effective on January 1, 2009. 

* * * * * 

(c) * * * 

(2) * * * 

(v) * * * 

(A) The vessel is limited to possessing 

onboard and/or using only 18/0 or larger 

circle hooks with an offset not to exceed 

10 degrees. The outer diameter of the 

circle hook at its widest point must be 

no smaller than 2.16 inches (55 mm) 

when measured with the eye on the 

hook on the vertical axis (y-axis) and 

perpendicular to the horizontal axis 

(x-axis), and the distance between the 

circle hook point and the shank (i.e., the 

gap) must be no larger than 1.13 inches 

(28.8 mm). The allowable offset is 

measured from the barbed end of the 

hook and is relative to the parallel plane 

of the eyed-end, or shank, of the hook 

when laid on its side. The only 

allowable offset circle hooks are those 

that are offset by the hook manufacturer. 

If green-stick gear, as defined at § 635.2, 

is onboard, a vessel may possess up to 

20 J-hooks. J-hooks may be used only 

with green-stick gear, and no more than 

10 hooks may be used at one time with 

each green-stick gear. J-hooks used with 

green-stick gear may be no smaller than 

1.5 inch (38.1 mm) when measured in 

a straight line over the longest distance 

from the eye to any other part of the 

hook; and, 

(B) The vessel is limited, at all times, 

to possessing onboard and/or using only 

whole Atlantic mackerel and/or squid 

bait, except that artificial bait may be 

possessed and used only with 

green-stick gear, as defined at § 635.2, if 

green-stick gear is onboard; and, 

* * * * * 

(D) Required sea turtle bycatch 

mitigation gear, which NMFS has 

approved under paragraph (c)(5)(iv) of 

this section, on the list of 

‘‘NMFS-Approved Models for 

Equipment Needed for the Careful 

Release of Sea Turtles Caught In Hook 

and Line Fisheries,’’ must be carried 

onboard, and must be used in 

accordance with the handling 

requirements specified in paragraphs 

(c)(2)(v)(E) through (G) of this section; 

and, 

* * * * * 

(G) Non-boated turtles. If a sea turtle 

is too large, or hooked in a manner that 

precludes safe boating without causing 

further damage or injury to the turtle, 

sea turtle bycatch mitigation gear, 

specified in paragraph (c)(2)(v)(D) of 

this section, must be used to disentangle 

sea turtles from fishing gear and 

disengage any hooks, or to clip the line 

and remove as much line as possible 

from a hook that cannot be removed, 

prior to releasing the turtle, in 

accordance with the protocols specified 

in paragraph (c)(2)(v)(C) of this section. 

Non-boated turtles should be brought 

close to the boat and provided with time 

to calm down. Then, it must be 

determined whether or not the hook can 

be removed without causing further 

injury. A front flipper or flippers of the 

turtle must be secured, if possible, with 

an approved turtle control device from 

the list specified in paragraph 

(c)(2)(v)(D) of this section. All externally 

embedded hooks must be removed, 

unless hook removal would result in 

further injury to the turtle. No attempt 

should be made to remove a hook if it 

has been swallowed, or if it is 

determined that removal would result in 

further injury. If the hook cannot be 

removed and/or if the animal is 

entangled, as much line as possible 

must be removed prior to release, using 

an approved line cutter from the list 

specified in paragraph (c)(2)(v)(D) of 

this section. If the hook can be removed, 

it must be removed using a 

long-handled dehooker from the list 

specified in paragraph (c)(2)(v)(D) of 

this section. Without causing further 

injury, as much gear as possible must be 

removed from the turtle prior to its 

release. Refer to the careful release 

protocols and handling/release 

guidelines required in paragraph 

(c)(2)(v)(C) of this section, and the 

handling and resuscitation requirements 

specified in § 223.206(d)(1) of this title, 

for additional information. 

* * * * * 

(5) * * * 

(i) Possession and use of required 

mitigation gear. Required sea turtle 

bycatch mitigation gear, which NMFS 

has approved under paragraph (c)(5)(iv) 

of this section as meeting the minimum 

design standards specified in 

paragraphs (c)(5)(i)(A) through (M) of 

this section, must be carried onboard, 

and must be used to disengage any 

hooked or entangled sea turtles in 

accordance with the handling 

requirements specified in paragraph 

(c)(5)(ii) of this section. 

* * * * * 

(M) Turtle control devices. Effective 

January 1, 2009, one turtle control 

device, as described in paragraph 

(c)(5)(i)(M)(1) or (2) of this section, is 

required onboard and must be used to 

secure a front flipper of the sea turtle so 

that the animal can be controlled at the 

side of the vessel. It is strongly 

recommended that a pair of turtle 

control devices be used to secure both 

front flippers when crew size and 

conditions allow. Minimum design 

standards consist of: 

(1) Turtle tether and extended reach 

handle. Approximately 15-20 feet of 1/ 

2-inch hard lay negative buoyance line 

is used to make an approximately 

30-inch loop to slip over the flipper. 

The line is fed through a 3/4-inch fair 

lead, eyelet, or eyebolt at the working 

end of a pole and through a 3/4-inch 

eyelet or eyebolt in the midsection. A 1/ 

2-inch quick release cleat holds the line 

in place near the end of the pole. A final 

3/4-inch eyelet or eyebolt should be 

positioned approximately 7-inches 

behind the cleat to secure the line, 

while allowing a safe working distance 

to avoid injury when releasing the line 

from the cleat. The line must be 

securely fastened to an extended reach 

handle or pole with a minimum length 

equal to, or greater than, 150 percent of 

the freeboard, or a minimum of 6 feet 

(1.83 m), whichever is greater. There is 

no restriction on the type of material 

used to construct this handle, as long as 

it is sturdy. The handle must include a 

tag line to attach the tether to the vessel 

to prevent the turtle from breaking away 

with the tether still attached. 

(2) T&G ninja sticks and extended 

reach handles. Approximately 30-35 

feet of 1/2-inch to 5/8-inch soft lay 

polypropylene or nylon line or similar 

is fed through 2 PVC conduit, fiberglass, 

of similar sturdy poles and knotted 

using an overhand (recommended) knot 

at the end of both poles or otherwise 

secured. There should be approximately 


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18-24 inches of exposed rope between 

the poles to be used as a working 

surface to capture and secure the 

flipper. Knot the line at the ends of both 

poles to prevent line slippage if they are 

not otherwise secured. The remaining 

line is used to tether the apparatus to 

the boat unless an additional tag line is 

used. Two lengths of sunlight resistant 

3/4-inch schedule 40 PVC electrical 

conduit, fiberglass, aluminum, or 

similar material should be used to 

construct the apparatus with a 

minimum length equal to, or greater 

than, 150 percent of the freeboard, or a 

minimum of 6 feet (1.83 m), whichever 

is greater. 

(ii) * * * 

(A) Sea turtle bycatch mitigation gear, 

as required by paragraphs (c)(5)(i)(A) 

through (D) of this section, must be used 

to disengage any hooked or entangled 

sea turtles that cannot be brought 

onboard. Sea turtle bycatch mitigation 

gear, as required by paragraphs 

(c)(5)(i)(E) through (M) of this section, 

must be used to facilitate access, safe 

handling, disentanglement, and hook 

removal or hook cutting of sea turtles 

that can be brought onboard, where 

feasible. Sea turtles must be handled, 

and bycatch mitigation gear must be 

used, in accordance with the careful 

release protocols and handling/release 

guidelines specified in paragraph (a)(3) 

of this section, and in accordance with 

the onboard handling and resuscitation 

requirements specified in 

§ 223.206(d)(1) of this title. 

* * * * * 

(C) * * * 

(1) Non-boated turtles should be 

brought close to the boat and provided 

with time to calm down. Then, it must 

be determined whether or not the hook 

can be removed without causing further 

injury. A front flipper or flippers of the 

turtle must be secured with an approved 

turtle control device from the list 

specified in paragraph (c)(2)(v)(D) of 

this section. All externally embedded 

hooks must be removed, unless hook 

removal would result in further injury 

to the turtle. No attempt should be made 

to remove a hook if it has been 

swallowed, or if it is determined that 

removal would result in further injury. 

If the hook cannot be removed and/or if 

the animal is entangled, as much line as 

possible must be removed prior to 

release, using a line cutter as required 

by paragraph (c)(5)(i) of this section. If 

the hook can be removed, it must be 

removed using a long-handled dehooker 

as required by paragraph (c)(5)(i) of this 

section. Without causing further injury, 

as much gear as possible must be 

removed from the turtle prior to its 

release. Refer to the careful release 

protocols and handling/release 

guidelines required in paragraph (a)(3) 

of this section, and the handling and 

resuscitation requirements specified in 

§ 223.206(d)(1) of this title for additional 

information. 

* * * * * 

(iii) * * * 

(C) * * * 

(3) If green-stick gear, as defined at 

§ 635.2, is onboard, a vessel may possess 

up to 20 J-hooks. J-hooks may be used 

only with green-stick gear, and no more 

than 10 hooks may be used at one time 

with each green-stick gear. J-hooks used 

with green-stick gear may be no smaller 

than 1.5 inch (38.1 mm) when measured 

in a straight line over the longest 

distance from the eye to any other part 

of the hook. If green-stick gear is 

onboard, artificial bait may be 

possessed, but used only with 

green-stick gear. 

* * * * * 

(e) * * * 

(1) * * * 

(ii) Charter/Headboat. Rod and reel 

(including downriggers), bandit gear, 

handline, and green-stick gear are 

authorized for all recreational and 

commercial Atlantic tuna fisheries. 

Speargun is authorized for recreational 

Atlantic BAYS tuna fisheries only. 

(iii) General. Rod and reel (including 

downriggers), handline, harpoon, bandit 

gear, and green-stick. 

* * * * * 

(v) Longline. Longline and green-stick. 

* * * * * 

(g) Green-stick gear. Green-stick gear 

may only be utilized when fishing from 

vessels issued a valid Atlantic Tunas 

General, HMS Charter/Headboat, or 

Atlantic Tunas Longline category 

permit. The gear must be attached to the 

vessel, actively trolled with the 

mainline at or above the water’s surface, 

and may not be deployed with more 

than 10 hooks or gangions attached. 

■ 6. In § 635.71: 

■ a. Paragraph (a)(23) is revised. 

■ b. Paragraphs (b)(36) through (40) are 

added. 

The revision and additions read as 

follows: 

§ 635.71 Prohibitions. 

* * * * * 

(a) * * * 

(23) Fail to comply with the 

restrictions on use of pelagic longline, 

bottom longline, gillnet, buoy gear, 

speargun gear, or green-stick gear as 

specified in § 635.21(c), (d), (e)(1), (e)(3), 

(e)(4), (f), or (g). 

* * * * * 

(b) * * * 

(36) Possess J-hooks onboard a vessel 

that has pelagic longline gear onboard, 

and that has been issued, or is required 

to have, a limited access swordfish, 

shark, or tuna longline category permit 

for use in the Atlantic Ocean, including 

the Caribbean Sea and the Gulf of 

Mexico, except when green-stick gear is 

onboard, as specified at 

§ 635.21(c)(2)(v)(A) and (c)(5)(iii)(C)(3). 

(37) Use or deploy J-hooks with 

pelagic longline gear from a vessel that 

has been issued, or is required to have, 

a limited access swordfish, shark, or 

tuna longline category permit for use in 

the Atlantic Ocean, including the 

Caribbean Sea and the Gulf of Mexico. 

(38) Possess more than 20 J-hooks 

onboard a vessel that has been issued, 

or is required to have, a limited access 

swordfish, shark, or tuna longline 

category permit for use in the Atlantic 

Ocean, including the Caribbean Sea and 

the Gulf of Mexico, when possessing 

onboard both pelagic longline gear, as 

described at § 635.21(c), and green-stick 

gear as defined at § 635.2. 

(39) Use or deploy more than 10 

hooks at one time on any individual 

green-stick gear. 

(40) Possess, use, or deploy J-hooks 

smaller than 1.5 inch (38.1 mm), when 

measured in a straight line over the 

longest distance from the eye to any 

other part of the hook, when fishing 

with or possessing green-stick gear 

onboard a vessel that has been issued, 

or is required to have, a limited access 

swordfish, shark, or tuna longline 

category permit for use in the Atlantic 

Ocean, including the Caribbean Sea and 

the Gulf of Mexico. 

* * * * * 

[FR Doc. E8–22261 Filed 9–22–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 070817467–81179–04] 

RIN 0648–AV90 

Fisheries of the Northeastern United 

States; Atlantic Sea Scallop Fishery; 

Framework Adjustment 19; Correcting 

Amendment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is correcting regulatory 

text implementing measures that were 


jlentini on PROD1PC65 with RULES