[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3431-3434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1382]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 990104001-9001-01; I.D. 111398D]
RIN 0648-AM05
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: This rule will allow acoustic deterrent devices to be deployed
farther away from the net in the California/Oregon drift gillnet
fishery (CA/OR DGN fishery). The intended effect of this action is to
allow acoustic devices to be more safely and efficiently attached to
drift gillnets.
DATES: Effective January 22, 1999. NMFS will accept comments until
February 22, 1999.
ADDRESSES: Submit comments on the interim final rule to Dr. William T.
Hogarth, Regional Administrator, Southwest Region, NMFS, 501 West Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, Southwest
Region, 562-980-4016.
SUPPLEMENTARY INFORMATION: On October 3, 1997 (62 FR 51805), NMFS
published a final rule requiring training, equipment, and gear
modifications for operators and vessels in the CA/OR DGN fishery to
reduce the mortality and serious injury of several marine mammal stocks
that occurs incidental to fishing operations. The regulatory text was
codified in subpart C of 50 CFR part 229. To correct and clarify the
meaning of the final rule, NMFS amended the regulations on May 21, 1998
(63 FR 27860).
Section 229.31(c) (1) and (2) require acoustic deterrent devices
(pingers) to be used on all vessels in the CA/OR DGN fishery during
every set and this section specifies pinger sound characteristics.
Under Sec. 229.31(c)(3), pingers must be attached on or near the
floatline and on or near the leadline and spaced no more than 300 ft
(90.0 m) apart. Pingers attached on extenders (buoy lines) or attached
to the floatline with lanyards (lines) must be within 3 ft (0.91 m) of
the floatline. Pingers attached with lanyards to the leadline must be
within 6 ft (1.82 m) of the leadline. These pinger deployment distances
were based on the same lengths of the lanyards used to attach pingers
to the net in NMFS' pinger experiments in the CA/OR DGN fishery during
1996 to 1997. Results from these experiments indicated that over time,
fishers became proficient at placing and removing pingers from both the
floatline and leadline. The final Environmental Assessment of the final
rule to implement the Pacific Offshore Cetacean Take Reduction Plan
(NMFS, 1997) concluded that deploying pingers on the floatline is
easier than the leadline because as the net is payed out the leadline
is often buried by slack in the net. For this reason, the net reel may
need to be slowed or stopped to safely attach and detach pingers to/
from the leadline.
After the final rule became effective and the entire fishery was
required to use pingers, NMFS learned that allowing pingers to be
deployed farther away from the net could provide greater flexibility
for attaching and removing pingers. Representatives of the CA/OR DGN
fishery reported to NMFS that allowing pingers to be deployed farther
away from the net could facilitate more efficient (faster) attachment
of pingers during the ``setting'' of the net and removal of pingers
during net retrieval. Also, at a series of skipper education workshops
held in August and September 1998, CA/OR DGN fishers stated that
pingers could be more efficiently and safely attached and removed to
and from the net with longer pinger lanyards. Specifically, they
suggested that allowing pingers to be deployed within 30 ft (9.14 m) of
the floatline and within 36 ft (10.97 m) of the leadline should allow
for more efficient and safe placement of pingers on the net. In
particular, for some drift gillnet fishing operations, if longer pinger
lanyards were attached permanently to the leadline, pingers may be
deployed without slowing down the net reel because direct handling of
the leadline to attach and/or remove pingers would not be necessary.
For instance, after removing a ``leadline'' pinger from a permanently
attached 36-ft (10.97 m) leadline lanyard during net retrieval, the
lanyard could be temporarily tied to the floatline before the net was
spun on the net reel. During the next fishing set, the leadline pinger
lanyard would be readily accessible near the floatline for attachment
of a leadline pinger. This rule allows greater
[[Page 3432]]
flexibility for pinger placement and removal from/to the net.
Increasing the length of pinger lanyards should not affect the
efficacy of pingers at reducing cetacean bycatch in the fishery.
Section 229.31(c)(1) stipulates that only pingers that broadcast a
sound frequency of 10 kHz (2 kHz) at 132 dB (4
dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15
milliseconds) and repeating every 4 seconds (+ .2 seconds) may be used
in the CA/OR DGN fishery. Pingers must also be operational to a water
depth of at least 100 fathoms (600 ft or 182.88 m). Pingers were
originally designed to produce a sound level that is audible at 15 dB
above ambient noise levels at a distance of 100 m (328 ft) from the
pinger (NMFS, 1996). To conservatively maintain this sound level in all
areas of the net, pingers were placed every 300 ft (91.44 m) on the
floatline and leadline during NMFS' pinger experiments in the CA/OR DGN
fishery. NMFS required pingers to be attached on both the floatline and
leadline because drift gillnets, especially when targeting swordfish,
are often set with the floatline above the ocean temperature
thermocline. Thermoclines may act as a barrier to sound transmission.
Allowing pingers to be attached within 30 ft (9.14 m) and 36 ft (10.97
m) from the floatline and leadline, respectively, should maintain the
same level of cetacean bycatch reduction as shorter pinger lanyards as
long as the vertical distance between pingers on the floatline and
leadline is not greater than 300 ft (91.44 m).
Although termed ``gillnets'', drift gillnets are designed to
entangle fish rather than to capture fish by the gills. Drift gillnets
are constructed of twisted nylon that is tied to form squares (meshes).
Mesh size is measured as the distance between two opposite knots of
mesh when stretched apart diagonally. To effectively catch fish, the
net meshes must open to form squares. Fish entanglement would be
impossible, or substantially reduced, if the net meshes were completely
stretched during fishing. The average stretched mesh size in the CA/OR
DGN fishery is 19 in (48.26 cm), but ranges from 16-22 in (48.26-55.88
cm). For 22-inch (55.88 cm) mesh (stretched size), the distance between
the two opposing knots when the net is in the water is approximately 12
in (30.48 cm). Thus, because the maximum observed net depth (measures
in meshes) is 160 meshes, the maximum vertical length of a drift
gillnet while it is being fished is approximately 160 ft (48.76 m) (160
meshes x 1 ft (.3048 m) per mesh). Since pingers attached to the
floatline with 30-ft (9.14 m) lanyards and pingers attached to the
leadline with 36-ft (10.97 m) lanyards would not be more than
approximately 226 ft (68.88 m) apart (160 + 30 + 36), the same level of
marine mammal bycatch reduction should be maintained with the longer
pinger lanyards. NMFS convened the Pacific Offshore Cetacean Take
Reduction Team (Team) in February 1996 to prepare a draft plan to
reduce cetacean bycatch in the CA/OR DGN fishery. NMFS will continue to
reconvene this Team on an annual basis to monitor the effectiveness of
the Plan's strategies to reduce marine mammal bycatch. The Team will
also evaluate the fishery's progress towards meeting the marine mammal
bycatch reduction goals of the MMPA.
At its June 1-2, 1998, meeting, the Team recommended that the final
rule should be amended to allow pingers to be attached within 30 ft
(9.14 m) and 36 ft (10.97 m) of the floatline and leadline,
respectively, in order to increase the safety of pinger deployment.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), finds for
good cause under 5 U.S.C. Sec. 553(b)(B) that providing prior notice
and an opportunity for public comment on this action is impracticable
and contrary to the public interest because allowing pingers to be
attached farther away from the net avoids an occupational hazard posed
by the existing regulation. An additional Federal Register notification
with an advance comment period would only prolong a risk to fishermen's
safety without countervailing benefits to marine mammals. Setting and
retrieving a drift gillnet in the CA/OR DGN fishery is already a
dynamic and sometimes dangerous operation. On most vessels, two crew
members are actively involved in setting the net: as the net is payed
out into the water, one operates the mechanical net reel and the other
snaps buoys and light-sticks to the floatline. Because the net is
continually moving during this operation, a crew member's clothing,
hands, arms, or legs can easily snag on an extender or on the net
slack, and the crew member injured or taken overboard with the net. In
this fishery, drift gillnet fishermen have been entangled in the net
and injured and/or dragged overboard during the routine setting of the
net. Requiring additional gear (e.g., pingers) to be attached directly,
or nearly directly, to the floatline and leadline increases the hazard
of this already dynamic and sometimes dangerous operation. Allowing
pingers to be placed a greater distance away from the net decreases the
probability that crew members will be accidentally entangled in the net
and injured and/or dragged overboard.
The affected public was already involved in the formulation of this
rule via mandatory workshops for vessel operators in the drift gillnet
fishery in August and September 1998. Seventy percent of the drift
gillnet permit holders participated in these workshops; all were
informed of the workshops and afforded the opportunity to participate.
At the workshops, the fishermen and NMFS discussed the proposal to
allow pingers to be attached farther away from the net. Many of the
participants confirmed that the proposal would make pinger deployment
safer and more efficient. No fishers opposed the modification.
Because this rule prevents injury to fishermen and is not expected
to decrease the effectiveness of pingers, the AA finds for good cause
under 5 U.S.C. 553(d)(3) that delaying the effective date of this rule
for 30 days is unnecessary. Further, because the rule allows pingers to
be placed a greater distance away from the net, it relieves a
restriction and under 5 U.S.C. 553(d)(1) is not subject to a delay in
effectiveness. Accordingly, the AA makes this action effective upon the
date it is filed for public inspection with the Office of the Federal
Register.
As this rule is not subject to the requirement to provide prior
notice and an opportunity for public comment under 5 U.S.C. 553, or any
other law, the analytical requirements of the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., are inapplicable.
This rule has been determined to not be significant for purposes of
E.O. 12866.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
For the reasons set out in the preamble, 50 CFR part 229 is amended
as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 229.31, paragraphs (c)(2) and (3) are revised,
paragraphs (c)(4) and (5) are redesignated as paragraphs (c)(7) and
(8), and new paragraphs (c)(4) through (6) are added to read as
follows:
[[Page 3433]]
Sec. 229.31 Pacific Offshore Cetacean Take Reduction Plan.
* * * * *
(c) * * *
(2) While at sea, operators of drift gillnet vessels with gillnets
onboard must carry enough pingers on the vessel to meet the
requirements set forth under paragraphs (c)(3) through(6) of this
section.
(3) Floatline. Pingers shall be attached within 30 ft (9.14 m) of
the floatline and spaced no more than 300 ft (91.44 m) apart.
(4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of
the leadline and spaced no more than 300 ft (91.44 m) apart.
(5) Staggered Configuration. Pingers attached within 30 ft (9.14 m)
of the floatline and within 36 ft (10.97 m) of the leadline shall be
staggered such that the horizontal distance between them is no more
than 150 ft (45.5 m).
(6) Any materials used to weight pingers must not change its
specifications set forth under paragraph (c)(1) of this section.
* * * * *
3. Figure 1 to part 229 is revised to read as follows:
Dated: January 14, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
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[FR Doc. 99-1382 Filed 1-21-99; 8:45 am]
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