[Federal Register Volume 65, Number 33 (Thursday, February 17, 2000)]
[Proposed Rules]
[Pages 8107-8111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3930]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No.000214041-0041-01; I.D. 012100C]
RIN 0648-AN50


Fisheries off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; Hawaii-based Pelagic Longline 
Fishery Line Clipper and Dipnet Requirement; Guidelines for Handling of 
Sea Turtles Brought Aboard Hawaii-based Pelagic Longline Vessels

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

ACTION: Proposed rule; gear requirements.

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SUMMARY: NMFS issues a proposed rule which would require the possession 
and use of line clippers and dip nets aboard vessels registered for use 
under a Hawaii longline limited access permit to disengage sea turtles 
hooked or entangled by longline fishing gear. The proposed rule would 
require the use of specific methods for the handling, resuscitating, 
and releasing of sea turtles. The intended effect of the proposed 
measures is to minimize the mortality of, or injury to, sea turtles 
hooked or entangled by longline fishing gear.

DATES: Comments on this proposed rule will be accepted through March 3, 
2000.

ADDRESSES: Written comments on this action must be mailed to Charles 
Karnella, Administrator, NMFS, Pacific Islands Area Office (PIAO), 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700; or faxed to 808-
973-2941. Comments will not be accepted if submitted via e-mail or 
internet. Copies of the environmental assessment prepared for this 
action may be obtained from Alvin Katekaru or Marilyn Luipold, PIAO.

FOR FURTHER INFORMATION CONTACT: Margaret Dupree or Marilyn Luipold, 
808-973-2937.

SUPPLEMENTARY INFORMATION: The Hawaii-based pelagic longline fishery is

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managed under the Fishery Management Plan for the Pelagics Fisheries of 
the Western Pacific Region (FMP). The FMP was prepared by the Western 
Pacific Fishery Management Council (Council) and is implemented under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 
660.
    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act (ESA). The 
Olive ridley (Lepidochelys olivacea) is listed as threatened in the 
Pacific, except for the Mexican nesting population, which is classified 
as endangered. The leatherback (Dermochelys coriacea) and hawksbill 
(Eretmochelys imbricata) are listed as endangered. The loggerhead 
(Caretta caretta) is listed as threatened, and green (Chelonia mydas) 
sea turtles are listed as threatened, except for populations in Florida 
and on the Pacific coast of Mexico, which are listed as endangered.
    Under the ESA and its implementing regulations, the take of sea 
turtles is generally prohibited, with exceptions as identified in 50 
CFR 223.206 and as authorized under section 7 of the ESA. For the 
purposes of the ESA and for this proposed rule, the term ``take'' means 
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct. Under section 7 
of the ESA, NMFS must consult on any Federal actions that may affect 
listed species under NMFS' jurisdiction and may issue Incidental Take 
Statements (ITSs) that authorize take incidental to the proposed 
action, if such take does not jeopardize the continued existence of any 
listed species. The Hawaii-based pelagic longline fishery is known to 
take sea turtles incidentally to fishing operations and, therefore, 
NMFS consulted on the FMP and its subsequent amendments and issued 
biological opinions with accompanying ITSs in 1985, 1991, 1993, 1994, 
and 1998. The 1994 ITS required NMFS to conduct a workshop to evaluate 
procedures for the handling of incidentally caught sea turtles. NMFS 
held this workshop in March 1995 and guidelines were produced (NMFS 
Technical Memorandum SWFSC-222, November 1995). In the workshop report, 
NMFS stated that additional injury may occur as turtles caught on 
longline gear are retrieved and that turtles cut free with varying 
lengths of line trailing from the mouth or body may later ingest or 
become entangled in the line, thereby suffering injury or eventual 
death by strangulation. Among the recommended guidelines was a 
requirement to remove any line if the turtle is entangled, to remove 
the hook or cut the line at the eye of the hook if the turtle is hooked 
externally, and to cut the line as close to the eye of the hook as 
possible if the hook is ingested--leaving as little line attached as 
possible. The 1998 ITS required NMFS to translate the guidelines and 
educate longline fishermen on turtle handling and release techniques no 
later than November 2000.
    The 1998 ITS also required NMFS to review, within 90 days of 
notification of an observed leatherback take, the circumstances 
surrounding the take. During the review of a leatherback take in which 
5 meters of line were left attached to the turtle, NMFS determined that 
an immediate practical method for mitigating the effects of hooking on 
individual turtles is to cut the leader as close to the hook as 
possible. A long-handled pruning pole fitted with a specially 
configured knife was discussed as an option to be used by NMFS' 
observers to cut line from incidentally caught sea turtles.
    In response to litigation, NMFS restated before the U.S. District 
Court, District of Hawaii, its commitment to developing a line clipping 
device that would reduce or eliminate line attached to sea turtles 
incidentally caught in longline gear, and to educating longline 
fishermen and vessels operators in procedures to safely handle and 
dehook sea turtles, and to using a line clipping device that would 
reduce or eliminate line attached to sea turtles incidentally caught in 
longline gear. Subsequently, on November 26, 1999, the United States 
District Court, District of Hawaii, entered an Order in CMC v. NMFS 
directing NMFS to require, within 4 months of the date of entry of the 
Order, ``every vessel with a Hawaii longline limited entry permit to 
carry and use line clippers and dip nets to disengage any hooked or 
entangled sea turtles with the least harm possible to the turtles.'' 
Magnuson-Stevens Act National Standard 9, (16 U.S.C. 301(a)(9)), 
requires NMFS to minimize, to the extent practicable, any sea turtle 
bycatch.
    While specific line clipper devices are not available in the 
commercial market, line clippers meeting the minimum design standards 
of this proposed rule may be fashioned from readily available tools and 
components. One model is an extended reach garden pruning tool, which 
may be adapted to meet the minimum prescribed design standards. Another 
model, which may be easily fabricated, is the Arceneaux Line Clipper 
depicted in figure 1 of this proposed rule. Consequently, line clippers 
may be fabricated or obtained and put into use in the fishery with 
little expense or delay. NMFS' proposed minimum design standards are 
intended to allow users flexibility in adapting line clippers and dip 
nets for optimum use aboard individual vessels.
    The proposed rule would also impose specified handling, 
resuscitation, and release requirements. All sea turtles brought aboard 
for dehooking and/or disentanglement would have to be handled in a 
manner which minimizes injury and promotes post-hooking survival. No 
other methods of handling would be allowed. Where practicable, comatose 
sea turtles would have to be brought aboard immediately with a minimum 
of injury and handled in accordance with the resuscitation and release 
requirements specified in this proposed rule. If the turtle is too 
large or hooked in such a manner as to preclude it being brought aboard 
without causing further damage or injury to the turtle, line clippers 
would have to be used to clip the line and remove as much line as 
possible prior to releasing the turtle. If a sea turtle brought aboard 
appears dead or comatose, resuscitation would have to be performed. The 
methods and procedures for resuscitation are similar to those imposed 
by NMFS in shrimp trawl fisheries. Sea turtles that revive and become 
active or that fail to revive within a 24-hour period would have to be 
returned to the sea in accordance with this proposed rule release 
requirements. These release provisions would require that the vessel 
engine be put in neutral gear so that the propeller is disengaged, the 
vessel is stopped, and the sea turtle is released away from any 
deployed fishing gear. The sea turtle would have to be observed to be 
safely away from the vessel before the propeller is engaged and 
operations are continued.
    NMFS is issuing this proposed rule with a 15-day comment period. 
Although the line clipper and dip net requirements are ordered by the 
Court, NMFS is soliciting public comments on the specifics of these 
requirements, such as the design elements. NMFS will consider public 
comments as well as further information provided by NMFS observers on 
the efficiency of line clipping devices and will make a final 
determination on any necessary modifications to the design standards 
through final rulemaking.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

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    The NOAA Assistant Administrator for Fisheries finds that this 
proposed rule must be finalized and become effective on March 24, 2000, 
to comply with the Order issued by the U.S. District Court, District of 
Hawaii.
    NMFS prepared an initial regulatory flexibility analysis that 
describes the impact this proposed rule, if adopted, would have on 
small entities. A copy of this analysis is available from NMFS (see 
ADDRESSES). A summary of the analysis follows.
    The analysis describes the reasons why the action is being 
considered and contains a succinct statement of the objectives of and 
the legal basis for the proposed rule. These are described earlier in 
this preamble.
    The fishery consists of 114 active vessels, all of which are 
considered small entities, and all of which would be affected. The rule 
does not contain any reporting or record keeping requirements and does 
not duplicate, overlap, or conflict with any other relevant Federal 
rules.
    The preferred alternative, as set forth in this proposed rule, 
meets the objective of the District Court order while minimizing 
economic impacts on fishery participants by establishing gear 
requirements based on performance and design standards, rather than 
requiring the purchase and use of specific devices. Total cost for the 
materials to fabricate and/or purchase line clippers and dip nets is 
estimated to be $250. The exact cost of resuscitating a sea turtle, as 
described herein, is not known, however, it is expected to be minimal.
    In addition to the preferred alternative, two other alternatives 
were evaluated. The first, a ``no action'' alternative, would impose 
the least cost burden on small entities; however, this alternative 
would fail to comply with the November 26, 1999, District Court order. 
The other alternative would require each permitted Hawaii longline 
vessel to purchase and carry on board a specific, prefabricated line 
clipper and sea turtle dip net, as well as require vessel operators to 
try and resuscitate inactive or comatose turtles. This alternative was 
rejected in favor of the preferred. Though the preferred alternative 
also requires resuscitation, it proposes design standards for line 
clippers and dip nets rather than requiring the purchase of 
prefabricated items. Specifying design standards encourages innovation 
and is likely to minimize compliance costs. Moreover, such 
prefabricated line clippers and dip nets are not readily available in 
the commercial market.
    An informal ESA section 7 consultation on the proposed action was 
completed on January 20, 2000. The consultation concluded that this 
action is not likely to adversely affect endangered and threatened 
species or critical habitat.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Fishing gear, Guam, Hawaiian Natives, Indians, Northern 
Mariana Islands, Reporting and recordkeeping requirements.

    Dated: February 14, 2000.
Andrew J. Kemmerer,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

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

    2. In Sec. 660.22, new paragraphs (cc) and (dd) are added to read 
as follows:


Sec. 660.22  Prohibitions.

* * * * *
    (cc) Fail to carry line clippers meeting the minimum design 
standards as specified in Sec. 660.32(a)(1), and a dip net as required 
under Sec. 660.32(a)(2), on board a vessel registered for use under a 
Hawaii longline limited access permit.
    (dd) Fail to follow the sea turtle handling, resuscitation, and 
release requirements specified in Sec. 660.32(b) through (d), when 
operating a vessel registered for use under a Hawaii longline limited 
access permit.
    3. A new Sec. 660.32 is added to read as follows:


Sec. 660.32  Sea turtle take mitigation measures.

    (a) Possession and use of required mitigation gear. Line clippers 
meeting minimum design standards as specified in paragraph (a)(1) of 
this section and dip nets meeting minimum standards prescribed in 
paragraph (a)(2) of this section must be carried aboard vessels 
registered for use under a Hawaii longline limited access permit and 
must be used to disengage any hooked or entangled sea turtles with the 
least harm possible to the sea turtles and as close to the hook as 
possible in accordance with the requirements specified in paragraphs 
(b) through (d) of this section.
    (1) Line clippers. Line clippers are intended to cut fishing line 
as close as possible to hooked or entangled sea turtles. NMFS has 
established minimum design standards for line clippers. The Arceneaux 
line clipper (ALC) is a model line clipper that meets these minimum 
design standards and may be fabricated from readily available and low-
cost materials (figure 1). The minimum design standards are as follows:
    (i) A protected cutting blade. The cutting blade must be curved, 
recessed, contained in a holder, or otherwise afforded some protection 
to minimize direct contact of the cutting surface with sea turtles or 
users of the cutting blade.
    (ii) Cutting blade edge. The blade must be capable of cutting 2.0-
2.1 mm monofilament line and nylon or polypropylene multistrand 
material commonly known as braided mainline or tarred mainline.
    (iii) An extended reach holder for the cutting blade. The line 
clipper must have an extended reach handle or pole of at least 6 ft 
(1.82 m).
    (iv) Secure fastener. The cutting blade must be securely fastened 
to the extended reach handle or pole to ensure effective deployment and 
use.
    (2) Dip nets. Dip nets are intended to facilitate safe handling of 
sea turtles and access to sea turtles for purposes of cutting lines in 
a manner that minimizes injury and trauma to sea turtles. The minimum 
design standards for dip nets that meet the requirements of this 
section nets are:
    (i) An extended reach handle. The dip net must have an extended 
reach handle of at least 6 ft (1.82 m) of wood or other rigid material 
able to support a minimum of 100 lbs (34.1 kg) without breaking or 
significant bending or distortion.
    (ii) Size of dip net. The dip net must have a net hoop of at least 
31 inches (78.74 cm) inside diameter and a bag depth of at least 38 
inches (96.52 cm). The bag mesh openings may be no more than 3 inches x 
3 inches (7.62 cm 7.62 cm).
    (b) Handling requirements. (1) All incidentally taken sea turtles 
brought aboard for dehooking and/or disentanglement must be handled in 
a manner to minimize injury and promote post-hooking survival.
    (2) When practicable, comatose sea turtles must be brought on board 
immediately, with a minimum of injury, and handled in accordance with 
the procedures specified in paragraphs (c) and (d) of this section.
    (3) If a sea turtle is too large or hooked in such a manner as to 
preclude safe boarding without causing further damage/injury to the 
turtle, line clippers

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described in paragraph (a)(1) of this section must be used to clip the 
line and remove as much line as possible prior to releasing the turtle.
    (c) Resuscitation. If the sea turtle brought aboard appears dead or 
comatose, the sea turtle must be placed on its belly (on the bottom 
shell or plastron) so that the turtle is right side up and its 
hindquarters elevated at least 6 inches (15.24 cm) for a period of no 
less than 4 hours and no more than 24 hours. The amount of the 
elevation depends on the size of the turtle; greater elevations are 
needed for larger turtles. A reflex test, performed by gently touching 
the eye and pinching the tail of a sea turtle, must be administered by 
a vessel operator, at least every 3 hours, to determine if the sea 
turtle is responsive. Sea turtles being resuscitated must be shaded and 
kept damp or moist but under no circumstance may be placed into a 
container holding water. A water-soaked towel placed over the eyes, 
carapace, and flippers is the most effective method in keeping a turtle 
moist. Those that revive and become active must be returned to the sea 
in the manner described in paragraph (d) of this section. Sea turtles 
that fail to revive within the 24-hour period must also be returned to 
the sea in the manner described in paragraph (d)(1) of this section.
    (d) Release. Live turtles must be returned to the sea after 
handling in accordance with the requirements of paragraphs (b) and (c) 
of this section:
    (1) By putting the vessel engine in neutral gear so that the 
propeller is disengaged and the vessel is stopped, and releasing the 
turtle away from deployed gear; and
    (2) Observing that the turtle is safely away from the vessel before 
engaging the propeller and continuing operations.
BILLING CODE 3510-22-F

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[FR Doc. 00-3930 Filed 2-16-00; 8:45am]
BILLING CODE 3510-22-C