[Federal Register Volume 70, Number 219 (Tuesday, November 15, 2005)]
[Rules and Regulations]
[Pages 69282-69285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22633]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 050801214-5283-02; I.D. 072105D]
RIN 0648-AQ91


Fisheries Off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; Sea Turtle Mitigation Measures

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to reduce and mitigate interactions 
between sea turtles and fisheries managed under the Fishery Management 
Plan for the Pelagic Fisheries of the Western Pacific Region (Pelagics 
FMP). This rule includes requirements for attending protected species 
workshops, for handling, resuscitating, and releasing sea turtles that 
are hooked or entangled in fishing gear, and for fishing gear 
configuration. This action is being taken in part to comply with the 
terms and conditions of a 2004 Biological Opinion on impacts on sea 
turtles by fisheries managed under the Pelagics FMP.

DATES: Effective December 15, 2005.

ADDRESSES: Copies of the following documents are available from William 
L. Robinson, Administrator, NMFS, Pacific Islands Region (PIR), 1601 
Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814:
     Regulatory amendment document entitled ``Sea Turtle 
Mitigation Measures Gear and Handling Requirements, Protected Species 
Workshop Attendance, and Shallow-Setting Restrictions A Regulatory 
Amendment to the Western Pacific Pelagics Fishery Management Plan,'' 
which contains an Environmental Assessment (EA), Regulatory Impact 
Review and a Final Regulatory Flexibility Assessment;
     The Final Regulatory Flexibility Assessment; and
     The Finding of No Significant Impact (FONSI) for the EA.
    Requests for these documents should indicate whether paper copies 
or electronic copies on CD-ROM are preferred. The documents are also 
available at the following web site: http://swr.nmfs.noaa.gov/pir.

FOR FURTHER INFORMATION CONTACT: Robert Harman, Sustainable Fisheries 
Division, PIR, NMFS, 808-944-2271.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the Internet 
at: http://www.archives.gov/federal-register/publications.
    On August 15, 2005, NMFS published in the Federal Register a 
proposed rule (70 FR 47777) that would require vessel owners and 
operators to attend protected species workshops, to handle, 
resuscitate, and release sea turtles that are hooked or entangled in 
fishing gear, and to modify fishing gear configuration. This action is 
being taken in part to comply with the terms and conditions of a 2004 
Biological Opinion resulting from a section 7 consultation under the 
Endangered Species Act (ESA) that analyzed the impacts on sea turtles 
caused by fisheries managed under the Pelagics FMP.
    In a Biological Opinion issued on February 23, 2004, NMFS concluded 
that the fisheries managed under the Pelagics FMP were not likely to 
jeopardize the continued existence of sea turtles or other species 
listed as threatened or endangered under the ESA.. Among other things, 
the terms and conditions of the 2004 Biological Opinion require the 
following: (1) owners and operators of vessels registered for use under 
longline general permits to attend protected species workshops 
annually, (2) owners and operators of vessels registered for use under 
longline general permits to carry and use dip nets, line clippers, and 
bolt cutters, and follow handling, resuscitation, and release 
requirements for incidentally hooked or entangled sea turtles, and (3) 
operators of non-longline vessels using hooks to target pelagic 
management unit species to follow sea turtle handling, resuscitation, 
and release requirements, as well as to remove the maximum amount of 
the gear possible from incidentally hooked or entangled sea turtles.
    In addition to recommending the above three measures, the Western 
Pacific Fishery Management Council (WPFMC) also recommended that NMFS 
include a fourth measure in this rule to extend to all longline vessels 
managed under the Pelagics FMP that may shallow-set north of the 
Equator the conservation benefits derived from the use of circle hooks, 
mackerel-type bait, and dehookers. The fourth measure also removes 
incentives for owners of Hawaii-based longline vessels to shed their 
permits in favor of general permits for the purpose of avoiding the 
requirement to use circle hooks, mackerel bait, etc., when shallow-
setting north of the Equator.
    Additional background on this final rule is found in the preamble 
to the proposed rule (70 FR 47777, published August 15, 2005) and is 
not repeated here.

Comments and Responses

    NMFS received comments on the proposed rule (70 FR 47777, published 
August 15, 2005) from one interested person. NMFS responds to the 
comment, as follows:
    Comment: The commenter supported the requirement for vessel owners 
and operators to attend protected species workshops, and the 
requirement for the owners and operators to be recertified regularly so 
that their knowledge of protected species stays current.
    Response: NMFS appreciates the support for the protected species 
workshop requirement, and notes that owners and operators must attend 
the workshop annually to obtain updated information about protected 
resources.

Changes to the Proposed Rule

    In Sec.  660.32, the regulatory text in paragraph (a)(3) is 
corrected to clarify that vessels affected by this paragraph are those 
with freeboards of 3 ft (0.91 m) or less. The proposed rule had 
accurately referred in the preamble and in the title of the regulatory 
text to vessels with freeboards of 3 ft (0.91 m) or less, but had 
inadvertently referred in the regulatory text described the paragraph 
as applying to vessels with freeboards ``greater than'' 3 ft (0.91 m). 
NMFS received no public comment on this inadvertency.

Classification

    The Administrator, Pacific Islands Region, NMFS, determined that 
this rule

[[Page 69283]]

is necessary for the conservation and management of the pelagic 
fisheries on the western Pacific region, and that it is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The potential economic impacts of this final rule on small entities 
were identified in an Initial Regulatory Flexibility Analysis (IRFA) 
and summarized in a Federal Register notice published August 15, 2005 
(70 FR 47777).. NMFS subsequently prepared a Final Regulatory 
Flexibility Analysis (FRFA).. A description of why the action is being 
considered, the objectives and legal basis for the action, and a 
description of the action, may be found at the beginning of this 
section. There are no recordkeeping or reporting requirements in this 
rule. No public comment was made on the IRFA.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides''. The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rule making process, a small entity compliance guide (compliance 
guide) was prepared.. Copies of this final rule and the compliance 
guide will be sent to all holders of permits issued for the western 
Pacific pelagic fisheries. The compliance guide will be available at 
the following web site http://swr.nmfs.noaa.gov/pir. Copies can also be 
obtained from the PIR (see ADDRESSES).
    This rule does not duplicate, overlap, or conflict with any 
relevant Federal rules. All affected vessels are considered to be small 
entities. Therefore, there are no economic impacts resulting from 
disproportionality between large and small vessels. A summary of the 
analysis follows.
    Most fishing vessels operating in the western Pacific region under 
the Pelagics FMP are owner-operated, with few individuals holding 
permits for more than one vessel. There are estimated to be between 
9,000 and 16,000 of these fishing operations (these estimated totals 
may include vessels that do not operate in EEZ waters), all of which 
are believed to be small businesses, i.e., according to Small Business 
Administration guidelines, they have gross revenues of less than $3.5 
million annually.
    Previously, all operators of longline vessels managed under the 
Pelagics FMP were required to attend protected species workshops. This 
requirement was removed by a U.S. District Court on April 1, 2004 
(D.D.C., Civ. No. 01-0765). Requiring both the owners and operators of 
vessels registered for use under longline general permits to annually 
attend protected species workshops will have a minimal cost for those 
who reside in Hawaii or American Samoa, where the training workshops 
are conducted. Some 15 percent of the vessels that fish in American 
Samoa and Hawaii under longline permits, however, have owners that 
reside outside of those two areas. A substantial travel cost to attend 
the workshops would be incurred by those people. NMFS is currently 
accommodating the owners and operators of Hawaii-based vessels that 
live outside Hawaii by providing interim protected species training via 
computer disk, mailed to the owner or operator.. This type of remote 
training and certification relieves potential travel costs, and may be 
further developed and implemented for other owners and operators who 
are not able to attend the workshops in person.
    Owners and operators of the vessels that are registered for use 
under longline general permits were previously required to carry and 
use dipnets, long-handled line clippers, and bolt cutters, so most 
vessels with longline general permits already have this gear.. However, 
these measures were also removed by the Federal Court in the case cited 
above. If the owners need to re-equip their vessels, the costs are not 
expected to exceed $100 per vessel. The WPFMC recommended that small 
longline vessels such as alias, i.e., American Samoa-based catamaran 
longline vessels generally less than 40 ft (12.2 m) in length, not be 
required to carry a dip net or long-handled line clippers because, due 
to the low freeboards on these boats, operators can simply retrieve and 
release the turtle from the side of the vessel without risk of 
additional injury to the animal.
    The WPFMC's recommendation to require vessels registered under a 
longline general permit to use size 18/0 or larger circle hooks with a 
10[deg] offset, mackerel-type bait, and dehookers when shallow-setting 
north of the Equator would incur the following costs: Re-equipping 
longlines with 18/0 circle hooks plus swivels would cost approximately 
$1.50/hook, and a large (longer than 75 ft or 22.8 m) longline vessel 
generally deploys 2,000-2,500 hooks/set, so the cost per vessel of that 
size would be $3,000 to $3,750. American Samoa-based longline vessels 
already use mackerel-type bait, i.e., sardine or saury (sanma), so 
there would be no additional cost for the bait requirement for these 
vessels. Obtaining approved dehookers and associated equipment would 
cost about $500 per vessel. The WPFMC recommended that small longline 
vessels with freeboards of less than or equal to three feet not be 
required to carry long-handled dehookers because operators can more 
effectively and safely use short-handled dehookers to release sea 
turtles without risk of additional injury to the animal.
    Under this rule, the total cost to equip a vessel registered for 
use with a longline general permit to shallow-set north of the Equator 
is estimated to be between $3,500 and $4,250. An ongoing additional 
annual replacement cost of $0.20 per hook would also be required as 
circle hooks are slightly more expensive than typical ``J'' hooks.
    The requirement for operators of all vessels that use hooks to 
target PMUS to follow sea turtle handling, resuscitation, and release 
requirements, including removing trailing gear, is not expected to 
exact any economic burden on these fishery participants because no gear 
requirements are being proposed for non-longline vessels, and 
interactions are rare.
    For each of the four measures recommended by the WPFMC, three 
alternatives were developed, so altogether, 12 alternatives were 
considered. The alternatives considered for the measure regarding 
protected species workshop attendance by owners and operators of 
vessels registered for use under longline general permits were: (1) no 
action maintaining the status quo; (2) requiring annual attendance by 
only vessel operators; and (3) requiring annual attendance by both 
vessel owners and operators.
    The alternatives considered for the measure regarding sea turtle 
mitigation gear (i.e., dip nets, line clippers, and bolt cutters) and 
handling, resuscitation, and release requirements were: (1) no action 
maintaining the status quo; (2) requiring owners and operators of 
vessels registered under a longline general permit to carry and use dip 
nets, line clippers, and bolt cutters, as well as follow handling, 
resuscitation, and release requirements for hooked or entangled sea 
turtles (vessels with 3 ft (0.91 m) of freeboard or less would be 
exempt from carrying dip nets or long-handled line clippers); and (3) 
requiring owners and operators of vessels registered under a longline 
general permit to carry and use dip nets, line

[[Page 69284]]

clippers, and bolt cutters, as well as follow handling, resuscitation, 
and release requirements for hooked or entangled sea turtles, with no 
exemptions for longline vessels with freeboards less than three ft 
(0.91 m).
    The alternatives for the measure regarding vessels that use hooks 
to target pelagic management unit species were: (1) no action 
maintaining the status quo; (2) requiring vessel owners and operators 
to follow sea turtle handling, resuscitation, and release requirements, 
including the removal of trailing gear from a hooked or entangled sea 
turtle when fishing in the EEZ of the western Pacific region; and (3) 
requiring vessel owners and operators to follow sea turtle handling, 
resuscitation, and release requirements, including the removal of 
trailing gear, wherever they fish.
    The alternatives for the measure regarding gear and bait 
requirements for owners and operators of vessels registered for use 
under a longline general permit that may shallow-set north of the 
Equator were: (1) no action maintaining the status quo; (2) requiring 
owners and operators to use 18/0 or larger circle hooks with 10[deg] 
offset, mackerel-type bait, and dehookers when shallow-setting north of 
the Equator; and (3) prohibiting shallow-setting north of the Equator 
by vessels registered under longline general permits.
    The following alternative was preferred because it best complied 
with the terms and conditions of the 2004 Biological Opinion: (1) 
requiring annual workshop attendance by both owners and operators; (2) 
requiring owners and operators of vessels registered for use under a 
longline general permit to carry and use dip nets, line clippers, and 
bolt cutters, as well as to follow handling, resuscitation, and release 
requirements for hooked or entangled sea turtles (vessels with 3 ft 
(0.91 m) of freeboard or less would be exempted from carrying dip nets 
or long-handled line clippers); (3) requiring longline vessel owners 
and operators to follow sea turtle handling, resuscitation, and release 
requirements, including the removal of trailing gear wherever they 
fish; and (4) requiring longline vessels owners and operators to use 
18/0 or larger circle hooks with 10F[deg] offset, mackerel-type bait, 
and dehookers when shallow-setting north of the Equator (vessels with 3 
ft (0.91 m) of freeboard or less would not be required to carry long 
handled dehookers).
    The inclusion of turtle handling requirements contained in 50 CFR 
660.32 (c) and (d) (which largely reflects those in 50 CFR 223.206) is 
necessary because 50 CFR 223.206 only applies to threatened species of 
sea turtles. This rule extends those handling requirements to 
interactions between Pelagics FMP fishing vessels and all species of 
sea turtles.

List of Subjects in 50 CFR Part 660

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

    Dated: November 7, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

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

0
1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.22, paragraphs (ff), (gg), (ii), (ll), (nn), and (oo) 
are revised to read as follows:


Sec.  660.22  Prohibitions.

* * * * *
    (ff) Own or operate a vessel registered for use under any longline 
permit issued under Sec.  660.21 while engaged in longline fishing for 
Pelagic Management Unit Species and fail to be certified for completion 
of a NMFS protected species workshop, in violation of Sec.  660.34(a).
    (gg) Own or operate a vessel registered for use under any longline 
permit issued under Sec.  660.21 while engaged in longline fishing for 
Pelagic Management Unit Species without having on board a valid 
protected species workshop certificate issued by NMFS or a legible copy 
thereof, in violation of Sec.  660.34(d).
* * * * *
    (ii) Fail to carry, or fail to use, a line clipper, dip net, or 
dehooker on a vessel registered for use under any longline permit 
issued under Sec.  660.21, in violation of Sec.  660.32.
* * * * *
    (ll) When operating a vessel registered for use under any longline 
permit issued under Sec.  660.21 or operating a vessel using hooks to 
target Pelagic Management Unit Species while fishing under the Pelagics 
FMP, fail to comply with the sea turtle handling requirements, in 
violation of Sec.  660.32(b).
* * * * *
    (nn) Engage in shallow-setting from a vessel registered for use 
under any longline permit issued under Sec.  660.21 north of the 
Equator (0[deg] lat.) with hooks other than offset circle hooks sized 
18/0 or larger, with a 10[deg] offset, in violation of Sec.  660.33(f).
    (oo) Engage in shallow-setting from a vessel registered for use 
under any longline permit issued under Sec.  660.21 north of the 
Equator (0[deg] lat.) with bait other than mackerel-type bait, in 
violation of Sec.  660.33(g).
* * * * *

0
3. In Sec.  660.32, paragraphs (c) and (d) are removed; paragraphs 
(a)(2) through (a)(4) are redesignated as paragraphs (a)(4) through 
(a)(6); paragraphs (a)(1), (b), and newly redesignated paragraph (a)(4) 
are revised; and paragraphs (a) introductory text, (a)(2), and (a)(3) 
are added to read as follows:


Sec.  660.32  Sea turtle mitigation measures.

    (a) Possession and use of required mitigation gear. The gear 
required in paragraph (a) of this section must be used according to the 
sea turtle handling requirements set forth in paragraph (b) of this 
section.
    (1) Hawaii longline limited access permits. Any owner or operator 
of a vessel registered for use under a Hawaii longline limited access 
permit must carry aboard the vessel line clippers meeting the minimum 
design standards specified in paragraph (a)(5) of this section, dip 
nets meeting the minimum design standards specified in paragraph (a)(6) 
of this section, and dehookers meeting the minimum design and 
performance standards specified in paragraph (a)(4) of this section.
    (2) Other longline vessels with freeboards of more than 3 ft 
(0.91m). Any owner or operator of a longline vessel with a permit 
issued under Sec.  660.21 other than a Hawaii limited access longline 
permit and that has a freeboard of more than 3 ft (0.91 m) must carry 
aboard the vessel line clippers meeting the minimum design standards 
specified in paragraph (a)(5) of this section, dip nets meeting the 
minimum design standards specified in paragraph (a)(6) of this section, 
and dehookers meeting ths minimum design and performance standards 
specified in paragraph (a)(7) of this section.
    (3) Other longline vessels with freeboards of 3 ft (0.91 m) or 
less. Any owner or operator of a longline vessel with a permit issued 
under Sec.  660.21 other than a Hawaii limited access longline permit 
and that has a freeboard of 3 ft (0.91 m) or less must carry aboard 
their vessels line clippers capable of cutting the vessels fishing line 
or leader

[[Page 69285]]

within approximately 1 ft (0.3 m) of the eye of an embedded hook, as 
well as wire or bolt cutters capable of cutting through the vessel's 
hooks.
    (4) Handline, troll, pole-and-line, and other vessels using hooks 
other than longline vessels. Any owner or operator of a vessel fishing 
under the Pelagics FMP with hooks other than longline gear are not 
required to carry specific mitigation gear, but must comply with the 
handling requirements set forth in paragraph (b) of this section.
* * * * *
    (b) Handling requirements. If a sea turtle is observed to be hooked 
or entangled in fishing gear from any vessel fishing under the Pelagics 
FMP, vessel owners and operators must use the required mitigation gear 
set forth in paragraph (a) of this section to comply with these 
handling requirements. Any hooked or entangled sea turtle must be 
handled in a manner to minimize injury and promote survival.
    (1) Sea turtles that cannot be brought aboard. In instances where a 
sea turtle is too large to be brought aboard or the sea turtle cannot 
be brought aboard without causing further injury to the sea turtle, the 
vessel owner or operator must disentangle and remove the gear, or cut 
the line as close as possible to the hook or entanglement, to remove 
the maximum amount of the gear from the sea turtle.
    (2) Sea turtles that can be brought aboard. In instances where a 
sea turtle is not too large to be brought aboard, or the sea turtle can 
be brought aboard without causing further injury to the turtle, the 
vessel owner or operator must take the following actions:
    (i) Immediately bring the sea turtle aboard;
    (ii) Handle the sea turtle in accordance with the procedures in 
paragraphs (b)(3) and (b)(4) of this section; and
    (iii) Disentangle and remove the gear, or cut the line as close as 
possible to the hook or entanglement, to remove the maximum amount of 
the gear from the sea turtle.
    (3) Sea turtle resuscitation. If a sea turtle appears dead or 
comatose, the following actions must be taken:
    (i) Place the sea turtle on its belly (on the bottom shell or 
plastron) so that the sea 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 varies 
with the size of the sea turtle; greater elevations are needed for 
larger sea turtles;
    (ii) Administer a reflex test at least once every 3 hours. The test 
is to be performed by gently touching the eye and pinching the tail of 
a sea turtle to determine if the sea turtle is responsive;
    (iii) Keep the sea turtle shaded and damp or moist (but under no 
circumstances place the sea turtle into a container holding water). A 
water-soaked towel placed over the eyes, carapace and flippers is the 
most effective method of keeping a sea turtle moist; and
    (iv) Return to the sea any sea turtle that revives and becomes 
active in the manner described in paragraph (b)(4) 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 (b)(4) of this 
section.
    (4) Sea turtle release. After handling a sea turtle in accordance 
with the requirements of paragraphs (b)(2) and (b)(3) of this section, 
the sea turtle must be returned to the ocean after identification 
unless NMFS requests the retention of a dead sea turtle for research. 
In releasing a sea turtle the vessel owner or operator must:
    (i) Place the vessel engine in neutral gear so that the propeller 
is disengaged and the vessel is stopped, and release the sea turtle 
away from deployed gear; and
    (ii) Observe that the turtle is safely away from the vessel before 
engaging the propeller and continuing operations.
    (5) Other sea turtle requirements. No sea turtle, including a dead 
turtle, may be consumed or sold. A sea turtle may be landed, offloaded, 
transhipped or kept below deck only if NMFS requests the retention of a 
dead sea turtle for research.

0
4. In Sec.  660.33, paragraphs (f) and (g) are revised to read as 
follows:


Sec.  660.33  Western Pacific longline fishing restrictions.

* * * * *
    (f) Any owner or operator of a vessel registered for use under any 
longline permit issued under Sec.  660.21 must use only offset circle 
hooks sized 18/0 or larger, with a 10[deg] offset, when shallow-setting 
north of the Equator (0[deg] lat.). As used in this paragraph, an 
offset circle hook sized 18/0 or larger is one with an outer diameter 
at its widest point is no smaller than 1.97 inches (50 mm) when 
measured with the eye of the hook on the vertical axis (y-axis) and 
perpendicular to the horizontal axis (x-axis). As used in this 
paragraph, a 10[deg] 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.
    (g) Any owner or operator of a vessel registered for use under any 
longline permit issued under Sec.  660.21 must use only mackerel-type 
bait when shallow-setting north of the Equator (0[deg] lat.). As used 
in this paragraph, mackerel-type bait means a whole fusiform fish with 
a predominantly blue, green or gray back and predominantly gray, silver 
or white lower sides and belly.
* * * * *

0
5. In Sec.  660.34, paragraphs (a), (c), and (d) are revised to read as 
follows:


Sec.  660.34  Protected species workshops.

    (a) Each year, both the owner and the operator of a vessel 
registered for use under any longline permit issued under Sec.  660.21 
must attend and be certified for completion of a workshop conducted by 
NMFS on interaction mitigation techniques for sea turtles, seabirds and 
other protected species.
* * * * *
    (c) An owner of a vessel registered for use under any longline 
permit issued under Sec.  660.21 must have a valid protected species 
workshop certificate issued by NMFS to the owner of the vessel, in 
order to maintain or renew their vessel registration.
    (d) An owner and an operator of a vessel registered for use under 
any longline permit issued under Sec.  660.21 must have on board the 
vessel a valid protected species workshop certificate issued by NMFS to 
the operator of the vessel, or a legible copy thereof.
[FR Doc. 05-22633 Filed 11-14-05; 8:45 am]
BILLING CODE 3510-22-S