[Federal Register Volume 71, Number 60 (Wednesday, March 29, 2006)]
[Proposed Rules]
[Pages 15680-15687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4582]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 635

[Docket No. 060313062-6062-01; I.D. 082305E]
RIN 0648-AT37


Atlantic Highly Migratory Species; Atlantic Commercial Shark 
Management Measures; Gear Operation and Deployment; Complementary 
Closures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would implement additional handling, 
release, and disentanglement requirements for sea turtles and other 
non-target species caught in the shark bottom longline (BLL) fishery. 
These requirements are intended to reduce post hooking mortality of sea 
turtles and other non-target species, which is an objective of 
Amendment 1 to the Fishery Management Plan for Atlantic Tunas, 
Swordfish, and Sharks (HMS FMP) published on December 24, 2003. This 
proposed rule would also implement management measures that are 
consistent with those implemented by the Caribbean Fishery Management 
Council (CFMC) on October 28, 2005. These complementary management 
measures are intended to minimize adverse impacts to Essential Fish 
Habitat (EFH) for reef-dwelling species. The proposed rule would apply 
to all participants in the Atlantic shark fishery.

DATES: Written comments must be received by 5 p.m. on June 27, 2006.

ADDRESSES: Written comments on the proposed rule or the Draft 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (Draft EA/RIR/IRFA) may be submitted to Mike 
Clark, Highly Migratory Species Management Division:
     E-mail: [email protected].
     Mail: 1315 East-West Highway, Silver Spring, MD 20910. 
Please mark the outside of the envelope ``Comments on Rule for 
Dehooking and Complementary Caribbean Measures for the Commercial Shark 
Fishery.''
     Fax: 301-713-1917.
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Include in the subject line the following identifier: I.D. 082305E.
    See SUPPLEMENTARY INFORMATION for meeting dates, times, and 
locations.
    Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks or 
its implementing regulations; and copies of the document entitled 
``Careful Release and Handling Protocols for the Careful Release of Sea 
Turtles with Minimal Injury'' may be obtained from the mailing address 
listed above, and are also available on the internet at http://www.nmfs.noaa.gov/sfa/hms. Copies of the documents supporting the 
actions contained in the Comprehensive Amendment to the Fishery 
Management

[[Page 15681]]

Plans of the U.S. Caribbean may be obtained by contacting Dr. Steve 
Branstetter, Southeast Regional Office, 263 13\th\ Ave. South, St. 
Petersburg, FL 33701; telephone 727-824-5305.

FOR FURTHER INFORMATION CONTACT: Mike Clark or Karyl Brewster-Geisz by 
phone: 301-713-2347 or by fax: 301-713-1917.

SUPPLEMENTARY INFORMATION:

Public Hearing Times, Date, and Locations

    1. April 26, 2006 from 7-9 p.m. Ponce Hilton, 1150 Caribe Avenue, 
Ponce, PR. 00716.
    2. April 27, 2006 from 6-8 p.m. Florence Williams Public Library, 
1122 King Street, Christiansted, St. Croix, U.S. Virgin Islands. 00802.
    3. May 18, 2006 from 7-9 p.m. City of Madeira Beach, 300 Municipal 
Drive, Madeira Beach, FL 33708.
    4. June 1, 2006 from 6-8 p.m. Town Hall, 407 Budleigh Street, 
Manteo, NC 27954.
    5. June 7, 2006 from 6-8 p.m. NMFS Laboratory, 3500 Delwood Beach 
Drive, Panama City, FL 32408.
    The Atlantic shark fishery is managed under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). The FMP for Atlantic Tunas, Swordfish, and Sharks and 
Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks are 
implemented by regulations at 50 CFR part 635. The fisheries for spiny 
lobster, queen conch, reef fish, and corals and reef-associated 
invertebrates in the exclusive economic zone (EEZ) off Puerto Rico and 
off the U.S. Virgin Islands are managed under fishery management plans 
prepared by the CFMC. These fishery management plans are implemented 
under the authority of the Magnuson-Stevens Act by regulations at 50 
CFR part 622.

Background

    An objective of the final rule implementing Amendment 1 to the FMP 
for Atlantic Tunas, Swordfish, and Sharks, was to minimize, to the 
extent practicable, bycatch of living marine resources and the 
mortality of such bycatch that cannot be avoided in the fisheries for 
Atlantic sharks. That rule finalized measures that required the use of 
non-stainless steel, corrodible hooks aboard shark BLL fishing vessels, 
the possession of release equipment (line cutters and dipnets, both 
with extended reach handles), and also required BLL vessels to 
immediately release any sea turtle, marine mammal, or smalltooth 
sawfish that is hooked or entangled and then move at least one nautical 
mile (2 km) before resuming fishing activities. At that time, NMFS had 
not yet approved dehooking devices for sea turtles. Therefore, while 
Amendment 1 to the HMS FMP requires vessel operators to possess, 
maintain, and utilize, dehooking and release equipment, implementation 
of the measure was delayed pending approval.
    The purpose of this proposed rulemaking is to update the necessary 
equipment and protocols that vessel operators in the BLL fishery must 
possess, maintain, and utilize for the safe handling, release, and 
disentanglement of sea turtles and other non-target species. 
Significant new information, techniques, and equipment have been 
approved and implemented for the PLL fishery since NMFS enacted 
Amendment 1 to the HMS FMP's requirements for the BLL fishery. 
Participants in the pelagic longline (PLL) fishery are required to 
possess, maintain, and utilize a suite of NMFS-approved handling and 
dehooking equipment when engaged in fishing activities (July 6, 2004, 
69 FR 40734). Research conducted in the Northeast Distant statistical 
reporting area (NED) has indicated that removing the maximum amount of 
gear from sea turtles significantly increases post-release survival. 
Dehooking devices that meet NMFS design standards are necessary for 
removal of fishing gear and are now available to release sea turtles. 
Because of similarities between the fisheries, NMFS is reassessing the 
BLL requirements in light of the July 6, 2004, rule for the PLL 
fishery.
    Another objective of this action is to propose for commercial 
Atlantic shark BLL fisheries, implementation of measures that are 
complementary to CFMC-recommended measures that NMFS implemented on 
October 28, 2005 (70 FR 62073). These measures would minimize adverse 
impacts to EFH and reduce fishing mortality for mutton snapper, red 
hind, and other reef-dwelling species. Scoping hearings for the 
Comprehensive Amendment to the FMPs of the Caribbean, including the 
bottom longline closures being considered in this rulemaking, were 
conducted from June 4 to June 12, 2002, in Puerto Rico and the U.S. 
Virgin Islands. The Environmental Protection Agency published a notice 
of availability (NOA) of the Draft Supplemental Environmental Impact 
Assessment (DSEIS) in the Federal Register on March 18, 2005 (70 FR 
13190). The final supplemental environmental impact statement for the 
Comprehensive Amendment to the FMPs of the Caribbean was filed with the 
Environmental Protection Agency on June 17, 2005, with the Notice of 
Availability published on June 24, 2005, (70 FR 36581).
    The Comprehensive Amendment to the FMPs of the Caribbean addressed 
several requirements of the Magnuson-Stevens Act including, but not 
limited to, reducing overfishing, rebuilding overfished stocks, and 
minimization, to the extent practicable, of the adverse effects on EFH 
caused by fishing. A proposed rule containing measures specific to 
Council-managed species in the Comprehensive amendment was published in 
the Federal Register on September 13, 2005 (70 FR 53979), with a 
comment period ending on September 28, 2005. The final rule, specific 
to Council-managed species, published in the Federal Register on 
October 28, 2005 (70 FR 62073), with an effective date of November 28, 
2005.
    Most of the elements contained in the Comprehensive Amendment, such 
as the establishment of biological reference points, rebuilding plans, 
and possession limits, apply solely to Council-managed species such as 
reef fish, queen conch, and spiny lobster. However, in several 
geographic areas, year-round prohibitions on BLL and other gear have 
been established to minimize, to the extent practicable, adverse 
effects on essential fish habitat caused by fishing activities and 
reduce fishing mortality of reef-dwelling species. These management 
measures could potentially impact commercial shark fisheries and are 
the subject of this current proposed rule.

Implementation of Additional Dehooking Requirements for the BLL Fishery

    Currently, to reduce injuries and mortalities associated with 
protected resources interactions, all Atlantic vessels that have BLL 
gear onboard must use corrodible, non-stainless steel hooks. If a 
marine mammal, sea turtle, or smalltooth sawfish, is hooked or 
entangled by the gear, the operator of the vessel must immediately 
release the animal, retrieve the BLL gear, and move at least 1 nm (2 
km). Vessel operators are required to follow guidelines for sea turtle 
handling in accordance with procedures specified by the NMFS at Sec.  
223.206(d)(1). Furthermore, vessel operators are required to possess 
long-handled (6 ft., 1.83 m) line cutters and a long-handled (6 ft., 
1.82 m) dipnet, capable of supporting 100 lbs (39.4 kg). Dipnets are 
required to boat sea turtles, when practicable, and line cutters are 
required to disengage any hooked or entangled sea turtles by cutting 
the line as close as possible to the hook. If a smalltooth sawfish is 
caught, the fish

[[Page 15682]]

should be kept in the water while maintaining water flow over the 
gills, examined for research tags, and then the line should be cut as 
close to the hook as possible.
    The preferred alternative would require vessel operators aboard all 
Federally permitted vessels for Atlantic HMS with BLL gear onboard to 
possess, maintain, and utilize additional equipment and protocols 
consistent with what is currently required for the PLL fishery. The 
preferred alternative would not change the requirements regarding use 
of corrodible, non-stainless steel hooks, moving 1 nautical mile after 
a protected resource interaction, or the handling of smalltooth 
sawfish. Diagrams, design specifications, and additional descriptions 
of the proposed pieces of equipment that vessels must possess, 
maintain, and utilize are provided in Appendix A of the draft 
environmental assessment (EA) prepared for this proposed rule and also 
listed in Table 1. Vessels would also be required to possess onboard a 
copy of the document entitled ``Careful Release Protocols for Release 
with Minimal Injury'' which describes the procedures for hook removal 
and careful release of sea turtles in detail. NMFS already provided 
these documents in either English, Spanish, or Vietnamese, to PLL and 
BLL fishermen. This document is available upon request from the HMS 
Management Division (see ADDRESSES section).

 Table 1. Examples of NMFS-Approved Equipment Required by the Preferred
 Alternative for the Careful Release of Sea Turtles and Other Non-Target
                   Species Caught in the BLL Fishery.
------------------------------------------------------------------------
                                               Examples of NMFS-Approved
                Required Item                            Models
------------------------------------------------------------------------
(A) Long-handled (6ft. (1.83 m) or 150         LaForce Line Cutter;
 percent of freeboard height) line cutter       Arceneaux Line Clipper
------------------------------------------------------------------------
(B) Long-handled (6 ft. (1.83 m) or 150        ARC Pole Model BP11 Deep
 percent of freeboard height) dehooker for      Hooked Dehooker
 ingested hooks
------------------------------------------------------------------------
(C) Long-handled (6ft. (1.83 m) or 150         ARC 6ft. Pole Big Game
 percent of freeboard height) dehooker for      Dehooker Model P610; ARC
 external hooks                                 Model LJ6P (6ft. or 1.83
                                                m); ARC Model LJ36; ARC
                                                6ft. (1.83 m) Pole Big
                                                Game Dehooker (Model
                                                P610)
------------------------------------------------------------------------
(D)Long-handled (6ft. (1.83 m) or 150 percent  ARC Model LJ6P (6ft. or
 of freeboard height) device to pull an         1.83 m); or ARC Model
 ``inverted V''                                 LJ36; ARC Pole Model
                                                Deep Hooked Dehooker
                                                (Model BP11); ARC 6ft.
                                                (1.83 m) Pole Big Game
                                                Dehooker (Model P610);
                                                Davis Telescoping Boat
                                                Hook (Model 85002A);
                                                West Marine Fishing Gaff
                                                (Model F6H5 with F6-006
                                                handle)
------------------------------------------------------------------------
(E) Dipnet (handle length must be 6ft. (1.83   ARC Breakdown Lightweight
 m) or 150 percent of freeboard height)         Dipnet Model (DN6P
                                                (6ft.), DNO8 (8ft.), or
                                                DN14 (12ft.)); Lindgren
                                                Pittman, Inc. Model NMFS-
                                                Turtle Net; ARC net
                                                assembly and Handle
                                                (Model DNIN)
------------------------------------------------------------------------
(F) Standard Automobile Tire                   Any standard automobile
                                                tire or other
                                                comparable, cushioned,
                                                elevated surface that
                                                allows boated turtles to
                                                be immobilized
------------------------------------------------------------------------
(G) Short Handled Dehooker for Ingested Hooks  ARC 16in. (40.64 cm) Hand
                                                Held Bite Block Deep
                                                Hooked Turtle Dehooking
                                                Device (Model ST08)
------------------------------------------------------------------------
(H) Short Handled Dehooker for External Hooks  ARC Hand Held Large J
                                                style Dehooker (Model
                                                LJ07); ARC Hand Held
                                                Large J style Dehooker
                                                (Model LJ24); or ARC
                                                17in. (43.18 cm) Hand
                                                Held Bite Block Deep
                                                Hooked Turtle Dehooking
                                                Device (Model STO8); or
                                                Scotty's Dehooker
------------------------------------------------------------------------
(I) Long nose or needle nose pliers            12in. (30.48 cm) S.S.
                                                NuMark Model 030281109871; any
                                                12in. (30.48 cm)
                                                stainless steel long 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 or
                                                long-handled wire brush
                                                (e.g., Olympia Tools
                                                Model 974174)
------------------------------------------------------------------------
(L2) Set of (3) Canine Mouth Gags              Jorvet Model 4160, 4162,
                                                and 4164
------------------------------------------------------------------------
(L3) Set of (2) Sturdy Dog Chew Bones          Nylabone(copyright),
                                                Gumabone(copyright), or
                                                Galileo(copyright)
                                                (trademarks owned by T.
                                                F. H. Publications, Inc)
------------------------------------------------------------------------
(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
                                                approximatley 2-4in.
                                                (5.08 - 10.16 cm)in
                                                thickness
------------------------------------------------------------------------

[[Page 15683]]

 
(L6) Set of (4) PVC splice couplings           A set of (4) Standard
                                                Schedule 40 PVC splice
                                                couplings (1in. (2.54
                                                cm), 1.25in. (3.175 cm),
                                                1 1.5in. (3.81 cm), and
                                                2in. (5.08 cm))
------------------------------------------------------------------------
(L7) Large avian oral speculum                 Webster Vet Supply Model
                                                (Model 85408);
                                                Veterinary Specialty
                                                Products (Model VSP 216-
                                                08); Jorvet (Model J-
                                                51z); and Krusse (Model
                                                273117)
------------------------------------------------------------------------

    This proposed rule would allow for use of other items that are not 
listed to fulfill the requirements, provided they meet the minimum 
design standards at 50 CFR 635.21. For this proposed rule, those design 
standards are also described in Appendix A of the draft environmental 
assessment. At this time, NMFS is aware of only one commercial 
manufacturer of long and short-handled dehookers for ingested hooks 
that meet the minimum design standards.
    The preferred alternative would require that vessels possess, 
maintain, and utilize items A through L (already required to possess 
long-handled linecutters (item A) and dipnets (item E)). For long-
handled items (A-E), handle length must be at least 6ft. (1.83 m) or 
150 percent of freeboard height, whichever is greater. Freeboard is 
defined at 50 CFR 635.2 as the working distance between the top rail of 
the gunwale to the water's surface, and will vary based on the vessel 
design. Two different mouth openers or gags (items L1-L7) are required. 
Both long and short-handled dehookers for ingested hooks (items B and 
G) can be used in lieu of dehookers for external hooks (items C and H), 
provided all vessels possess both a short and a long-handled dehooker 
for ingested hooks (at a minimum). Furthermore, if vessels possess a 
6ft. (1.83 m) J style dehooker to satisfy the requirement for item C, 
it would also satisfy the requirement for item D. Items A-D are 
intended to be used for turtles that are not boated. Items E-L are 
intended to be used for turtles that are boated.
    The design standards for the NMFS-approved items are described in 
Appendix A of the draft EA for this proposed rule. These standards 
would allow fishermen to construct some of the equipment from material 
that is readily available to them and to use skills that most fishermen 
likely possess, provided the equipment meets design standards listed at 
50 CFR 635.21. This gear is necessary to release sea turtles 
effectively with minimal harm or injury; however, the handling, 
release, and disentanglement equipment may also assist fishermen with 
other non-target species that are encountered during fishing 
activities. Possession of this equipment would not impact the number of 
interactions between BLL gear and sea turtles and other non-target 
species.
    As described in Appendix A of the draft EA, NMFS also recommends 
possession and utilization of a ``turtle tether'' for controlling large 
turtles at the side of the boat and a ``turtle hoist'' for moving large 
turtles onto the boat, but these items are not being proposed as 
requirements at this time.
    The existing requirements for sea turtle handling and resuscitation 
procedures specified by NMFS are described at 50 CFR 223.206(d)(1)(i). 
Additional handling requirements for sea turtles and other protected 
resources are described at 50 CFR 635.21(c)(5)(ii). This proposed rule 
makes a minor revision to the regulatory text at 50 CFR 
223.206(d)(1)(ii) to clarify that the turtle handling and resuscitation 
provisions of Sec.  223.206 (d)(1)(i) are in addition to the turtle 
handling requirements at 50 CFR 635.21.
    The preferred alternative would have ecological, economic, and 
social impacts. The additional equipment required is necessary to 
maximize gear removal and would have positive ecological impacts by 
maximizing post-release survival of sea turtles and other non-target 
species after interactions with longline gear. It is estimated that 
approximately 17 leatherback and 123 loggerhead sea turtles are killed 
annually as a result of interactions with BLL gear. It is estimated 
that between two and ten fewer leatherback sea turtles, and between 12 
and 71 fewer loggerhead sea turtles would die as a result of 
interactions with BLL gear by employing the additional dehooking 
equipment required by this alternative. Negative economic impacts would 
be expected initially as participants would be required to purchase or 
construct additional equipment as a result of this alternative. NMFS 
estimates that the one-time costs of initial compliance would range 
from $253 to $977; exact costs would depend on how much of the 
equipment the fishermen are able to construct themselves, the vessel's 
freeboard height (freeboard height is related to handle-length required 
on items A-E), and the amount of equipment that they already possess. 
Some of these economic impacts may be offset over time as fishermen are 
able to retrieve more of their hooks by using the dehooking equipment. 
Costs may also be incurred in the future as equipment may need to be 
maintained or replaced, as necessary. NMFS anticipates negligible 
social impacts as a result of the preferred alternative.
    NMFS also considered two other alternatives for this rulemaking. A 
status quo alternative would maintain the current dehooking equipment 
requirements and would result in negative ecological impacts as the 
equipment currently required does not ensure that participants are able 
to remove the maximum amount of fishing gear from sea turtles to reduce 
post-hooking mortality. Furthermore, this alternative does not comply 
with the October 2003 BiOp which required NMFS to implement additional 
dehooking equipment for the shark BLL when it was approved. This 
alternative would not result in any economic or social impacts as it 
would not require participants to modify their behavior or attain any 
additional equipment.
    The other alternative that NMFS considered would require 
participants to possess additional equipment based on their vessel's 
freeboard height. Vessel's that have a freeboard height less than or 
equal to 4 feet (1.22 m) would not have to possess the full suite of 
long-handled dehooking equipment (items B (and/or C) and D). Vessel's 
with freeboard height greater than 4 feet (1.22 m) would be required to 
possess the full suite of long-handled equipment. This alternative was 
considered because BLL vessel's are generally smaller and have a lower 
freeboard height than PLL vessel's. The shark BLL fishery interacts 
with fewer sea turtles in general, and interactions with larger 
leatherback or loggerhead sea turtles that cannot be boated are more 
infrequent. For these smaller BLL vessels, the length of a short 
handled dehooker (items G and/or H), in addition to a fisherman's arm 
length, may be sufficient to dehook and release turtles that are too 
large to be brought on board. This alternative would result in positive 
ecological impacts relative to the status quo, however, these impacts 
would be less positive than those achieved with the preferred 
alternative which requires all participants to possess the full suite 
of long-handled equipment for dehooking

[[Page 15684]]

or disentangling turtles that can not be boated. The preferred 
alternative has increased positive ecological impacts because 
possessing the long-handled equipment would increase the likelihood 
that fishermen are able to dehook and or remove as much gear as 
possible from turtles that cannot be brought onboard. Similar to the 
preferred alternative, negative economic impacts would occur as a 
result of this alternative initially as it would require participants 
to procure additional equipment that would range in price from $152 to 
$477. Social impacts as a result of this alternative would likely be 
negligible.
    The preferred alternative was selected in order to maximize post-
hooking survival of sea turtles and maintain consistency between the 
PLL and BLL fisheries because of the similarities between these 
fisheries, the gear employed, and the fishermen. Furthermore, since 
many vessel operators and owners fish with both BLL and PLL gear NMFS 
selected a preferred alternative that would enable operators to possess 
the same equipment required in the PLL fishery. This would facilitate 
and improve compliance with the regulations and maintain consistency 
among longline and HMS fisheries. The economic impacts of compliance 
may be reduced if Atlantic shark fishermen construct additional 
equipment themselves, provided it meets the design specifications at 50 
CFR 635.21.

Restrictions to Minimize Adverse Effects on EFH and Reduce Fishing 
Mortality of Reef-Dwelling Species

    This proposed rule would prohibit persons issued an HMS permit with 
BLL gear onboard a vessel from fishing or deploying any type of fishing 
gear, on a year-round basis in: (1) The newly-implemented Grammanik 
Bank closed area; (2) the existing mutton snapper spawning aggregation 
area off the southwest coast of St. Croix, U.S. Virgin Islands; and (3) 
the existing red hind spawning aggregation areas (East of St. Croix, 
and West of Puerto Rico (including Bajo de Cico, Tourmaline Bank, and 
Abrir La Sierra Bank)). See 50 CFR 622.33(a) for the exact coordinates 
of these areas. The year-round prohibition on the use of BLL and other 
fishing gears within these discrete spawning aggregation sites would 
protect EFH and contribute to needed reductions in fishing mortality of 
mutton snapper, red hind, and other reef-dwelling species. As described 
in the Comprehensive Amendment to the Caribbean FMPs, there were 
several other requirements regarding fish traps and pots that do not 
impact HMS fisheries, in addition to a No Action alternative.
    The only HMS fishery in the Virgin Islands and Puerto Rico that 
could potentially be affected by this proposed action is the commercial 
shark BLL fishery. As of October 2005, only one shark incidental permit 
was held by a vessel in the USVI, and no shark limited access permits 
were held by vessels in Puerto Rico. Similarly, only one dealer held an 
Atlantic shark dealer permit in the USVI, with no dealer permits issued 
in Puerto Rico. Accordingly, the volume of sharks landed in Puerto Rico 
and the Virgin Islands from 1997 through 2002 was relatively minor. 
Based upon dealer weigh-out data, shark landings totaled less than 
3,200 lb (1,422 kg) and consisted of 66 individual fish for that six-
year period. It is possible, however, that these data may not be 
reflective of the actual extent of the Caribbean shark fishery due to 
unreported landings.
    Due to the low level of documented commercial shark landings in 
Puerto Rico and the U.S. Virgin Islands, the social and economic 
impacts associated with this proposed action on HMS fisheries are 
expected to be de minimus. In fact, because the affected areas are 
significantly smaller than the area from which the landings estimate 
was derived, and because these areas are already closed to bottom-
tending gears in other fisheries, the social and economic impacts are 
likely to be negligible. Based on the available data, NMFS does not 
anticipate that the proposed measures would result in a measurable 
reduction or redistribution of HMS-related effort, including shark BLL 
fishing, or any changes in HMS fishing practices.
    The proposed measures are not expected to impact fishing costs, ex-
vessel prices, or market availability given the limited quantities of 
sharks landed in the U.S. Caribbean. However, by complementing existing 
management measures to protect EFH in the Caribbean, the biological 
impacts associated with this alternative are expected to be positive. 
The non-preferred No Action alternative would not have adverse economic 
impacts on federal permit holders. Any positive ecological impacts on 
HMS are expected to be minimal because there has been little reported 
or observed HMS fishing effort in recent years. However, such 
complementary management measures could prevent future increases in 
fishing effort and provide ancillary conservation benefits to HMS in 
addition to Council-managed species.

Classification

    The proposed rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq.
    The final rule implementing management measures specific to 
Council-managed species was determined to be significant for purposes 
of Executive Order 12866. This proposed rule, which would close 
complementary areas for HMS fisheries and require dehooking equipment 
for BLL fishermen, has been determined to be not significant for 
purposes of Executive Order 12866.
    As required under the Regulatory Flexibility Act (RFA), NMFS has 
prepared an Initial Regulatory Flexibility Analysis (IRFA) that 
examines the impacts of the preferred alternatives and any significant 
alternatives to the proposed rule that could minimize significant 
economic impacts on small entities. A summary of the information 
presented in the IRFA is provided below. The draft EA prepared for this 
proposed rule provides further discussion of the biological, social, 
and economic impacts of all the alternatives considered.
    NMFS prepared a final Regulatory Flexibility Act analysis (FRFA) 
for the final rule that implemented the management measures in the 
Comprehensive Amendment to the Caribbean FMPs. The FRFA incorporated 
the Initial Regulatory Flexibility Act analysis (IRFA) published on 
September 13, 2005 (70 FR 53979), a summary of the significant issues 
raised by the public comments in response to the IRFA, NMFS' response 
to public comments on the IRFA, and a summary of the analyses completed 
to support that action. No comments were received in response to the 
IRFA that related to HMS fisheries. The IRFA in this proposed rule 
incorporates by reference the findings of the FRFA published on October 
28, 2005 (70 FR 62073), and describes the economic impact this proposed 
rule, if adopted, would have on small entities participating in HMS 
fisheries.
    This proposed rule would apply to all vessels that have BLL gear 
onboard and have been issued, or are required to have, Federal HMS 
limited access permits. NMFS considers all commercial permit holders to 
be small entities. NMFS estimates that, as of October 2005, 
approximately 235 directed and 320 incidental shark permits (555 
permits total) had been issued. It is estimated that 284 directed and 
incidental shark permit holders do not also fish with PLL gear, and 
therefore, do not already possess the

[[Page 15685]]

handling, dehooking, and release equipment that would be required by 
this rulemaking. These permit holders also do not possess directed or 
incidental swordfish permits, therefore, it can be assumed that they do 
not fish with PLL gear. Eighty percent of permit holders fish from the 
state of Florida. Since the same safe handling and release equipment 
and protocols are already required for the PLL fishery and permit 
holders that use PLL gear are already required to possess the equipment 
necessary to satisfy the requirements for the BLL fishery, fishermen 
who use PLL gear would not be affected by this current rulemaking.
    Other sectors of HMS fisheries such as dealers, processors, bait 
houses, and gear manufacturers might be indirectly affected by the 
proposed alternative because of the direct impacts on fishermen. The 
proposed rule only applies directly to permit holders and shark BLL 
fishermen.
    This proposed rule would also prohibit vessels issued an HMS permit 
with BLL gear onboard from fishing or deploying any type of fishing 
gear on a year-round basis in the: (1) Newly-implemented Grammanik Bank 
closed area; (2) existing mutton snapper spawning aggregation closed 
area off the southwest coast of St. Croix, U.S. Virgin Islands; and (3) 
existing red hind spawning aggregation closed areas (East of St. Croix, 
West of Puerto Rico (including Bajo de Cico, Tourmaline Bank, and Abrir 
La Sierra Bank)). This alternative could potentially impact one shark 
incidental permit holder and one shark dealer permit holder in the 
USVI. There are no shark limited access permit holders or shark dealer 
permit holders in Puerto Rico. It is possible, however, that the permit 
data may not reflect the actual number of small entities participating 
in the federal shark fishery in the U.S. Caribbean EEZ. The non-
preferred No Action alternative would not affect any federal permit 
holders.
    The proposed regulations do not contain additional reporting or 
record-keeping requirements, but would result in additional compliance 
requirements, including the possession of specific protocols that 
describe the proper handling, release, and disentanglement of sea 
turtles and other non-target species and how to employ the required 
equipment. A document entitled ``Careful Release Protocols for Sea 
Turtle Release with Minimal Injury'' contains the sea turtle careful 
release protocols and would be required to be possessed onboard. NMFS 
has already provided this document in English, Spanish, or Vietnamese 
(see ADDRESSES).
    NMFS considered three alternatives for the implementation of 
additional dehooking requirements for protected resources in the BLL 
fishery. The alternatives included: no action, requiring additional 
handling and release equipment based on vessel freeboard height, and 
implementing the same dehooking equipment and protocols as those that 
are currently required in the PLL fishery. Maintaining consistency 
between the PLL and BLL fisheries by implementing the same dehooking 
equipment for both fisheries is the preferred alternative.
    One of the requirements of an IRFA is to describe any alternatives 
to the proposed rule that accomplish the stated objectives and that 
minimize any significant economic impacts (5 U.S.C. 603 (c)). 
Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) 
lists four categories for alternatives that must be considered. These 
categories are: (1) Establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (2) clarification, consolidation, or 
simplification of compliance and reporting requirements under the rule 
for such small entities; (3) use of performance rather than design 
standards; and (4) exemptions from coverage for small entities.
    In order to meet the objectives of this proposed rule, consistent 
with Magunson-Stevens Act, Atlantic Tunas Convention Act (ATCA), and 
the Endangered Species Act (ESA), NMFS cannot exempt small entities or 
change the reporting requirements only for small entities. 
Additionally, the handling and release gear requirements would not be 
effective with different compliance requirements. Thus, there are no 
alternatives discussed that fall under the first and fourth categories 
described above. In addition, none of the alternatives considered would 
result in additional reporting or compliance requirements (category two 
above). All alternatives considered are based on design standards 
rather than performance standards; fishermen would be in compliance of 
the proposed rulemaking as long as they possess and utilize gear that 
conforms to the design specifications located in Appendix A for the 
safe handling, release, and disentanglement of protected resources. Any 
item meeting the design standards may be constructed or purchased and 
used, as long as the design is first certified by the NMFS Pascagoula 
Laboratory. When new items are certified, a notice would be published 
in the Federal Register. As described below, NMFS considered three 
different alternatives in this proposed rulemaking.
    The no action alternative would not result in any economic impacts 
as it would not require Atlantic shark fishermen in the BLL fishery to 
possess additional sea turtle handling and release equipment. This 
alternative is not preferred, as it would result in negative ecological 
impacts, compared to the preferred alternative. Fishermen would not be 
able to effectively handle, release, and/or disentangle sea turtles and 
other non-target catch, which would not result in a decrease in post-
hooking mortality.
    Requiring additional equipment and release guidelines based on 
vessel freeboard height would result in negative economic impacts 
because fishermen would be expected to possess, maintain, and utilize 
additional equipment that would range from $152 - $477. Costs would 
vary depending on what equipment vessels already possess, how much of 
the equipment fishermen are able to construct themselves, and the 
vessel's freeboard height. This alternative would not require vessels 
with a freeboard height of 4ft. (1.22 m) or less to possess the full 
suite of long-handled equipment.
    The four-foot or less freeboard height was chosen as the threshold 
for exempting vessels from possessing long-handled dehookers because it 
is assumed that the handle length of a short-handled dehooker, in 
addition to a fisherman's arm length, might be sufficient for reaching 
and dehooking most non-boated sea turtles and other protected 
resources. The majority of sea turtles that would interact with 
Atlantic BLL fisheries are large juvenile loggerhead and adult 
leatherback sea turtles. Requiring additional long-handled equipment 
would facilitate more effective handling of these larger turtles that 
can not be boated. Long-handled dehookers might facilitate improved 
hook removal, release, or disentanglement of larger turtles. Research 
in the NED for the PLL fishery has shown that some turtles released 
alive may subsequently die from hook ingestion, trailing gear, or 
injuries suffered when entangled in gear. Therefore, a freeboard height 
dependant alternative would have less of an ecological benefit compared 
to the preferred alternative. The freeboard height based alternative is 
also not preferred because it would result in inconsistency between the 
PLL and BLL fisheries.
    The preferred alternative would maintain consistency between the 
PLL and BLL fisheries by requiring Atlantic shark fishermen with BLL 
gear onboard

[[Page 15686]]

to possess, maintain, and utilize the same equipment currently required 
on PLL vessels. This alternative would enable Atlantic shark fishermen 
with BLL gear onboard to follow the protocols and possess the equipment 
necessary for the PLL fishery, easing determination of compliance for 
both fishermen and enforcement. This alternative would have negative 
economic impacts as it would impose initial compliance costs for some 
Atlantic shark fishermen ranging from $253 to $977, depending upon on 
what equipment vessels already possess, how much of the equipment 
fishermen are able to construct themselves, and the vessel's freeboard 
height because freeboard height is related to required handle length on 
long-handled equipment (items A-E).
    These proposed regulations are not expected to increase endangered 
species or marine mammal interaction rates. A Biological Opinion (BiOp) 
issued October 29, 2003, concluded that the continued operation of the 
Atlantic shark fisheries was not likely to jeopardize the continued 
existence of any listed species under NMFS purview. An analysis of the 
anticipated incidental takes of sea turtles (primarily loggerhead and 
leatherback sea turtles) and smalltooth sawfish resulted in a ``non-
jeopardy'' determination in the BiOp. Measures proposed in this rule 
are expected to reduce post hooking mortality by removing the maximum 
amount of gear from sea turtles and other non-target species that are 
caught incidentally on BLL gear in the Atlantic shark fishery. This 
proposed rule would implement handling and release measures beyond 
those required in the October BiOp. Furthermore, this proposed rule 
would not alter fishing practices or fishing effort significantly and 
therefore should not have any further impacts on endangered species or 
marine mammals beyond those considered in the October 29, 2003, BiOp 
for Atlantic shark fisheries.
    The preferred alternative of closing certain areas in the Caribbean 
would reduce fishing mortality of reef-dwelling species and minimize 
adverse effects on EFH, to the extent practicable, caused by BLL 
fishing. It is expected to have a negligible impact on small entities 
participating in HMS fisheries due to the small number of permit 
holders, and the low level of documented commercial shark landings in 
Puerto Rico and the U.S. Virgin Islands. Based upon dealer weigh-out 
data, shark landings totaled less than 3,200 lbs. and consisted of 66 
individual fish for the six-year period from 1997 through 2002. Because 
the affected areas are significantly smaller than the area from which 
these landings estimates were derived, and because these areas are 
already closed to bottom-tending gears in other fisheries, the impacts 
are expected to be minor. A No Action alternative was considered, and 
would have less onerous impacts on small businesses but would not 
satisfy Magnuson-Stevens Act requirements to minimize, to the extent 
practicable, adverse effects on EFH caused by fishing.
    The preferred alternatives are not expected to alter HMS fishing 
practices, techniques, or effort in any way that would increase 
interactions with protected species or marine mammals.
    NMFS has determined preliminarily that these regulations would be 
implemented in a manner consistent to the maximum extent practicable 
with the enforceable policies of those coastal states on the Atlantic, 
including the Gulf of Mexico and Caribbean, that have approved coastal 
zone management programs. Letters will be sent to the relevant states 
asking for their concurrence when the proposed rule is filed with the 
Office of the Federal Register.
    This proposed rule does not contain any new reporting or 
recordkeeping requirements.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS does not believe that the proposed regulations would conflict 
with any other relevant regulations, Federal or otherwise (5 U.S.C. 
603(b)(5)).

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 635

    Fisheries, Fishing, Fishing Vessels, Foreign Relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: March 22, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

50 CFR Chapter II

    For reasons set out in the preamble, 50 CFR part 223 Chapter II and 
part 635 Chapter VI are proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.
    2. In Sec.  223.206, paragraph (d)(1)(ii) is revised to read as 
follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (1) * * *
    (ii) In addition to the provisions of paragraph (d)(1)(i) of this 
section, a person aboard a vessel in the Atlantic, including the 
Caribbean Sea and the Gulf of Mexico, that has pelagic or bottom 
longline gear on board and that has been issued, or is required to 
have, a limited access permit for highly migratory species under 50 CFR 
635.4, must comply with the handling and release requirements specified 
in 50 CFR 635.21.
* * * * *

50 CFR Chapter VI

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

    3. The authority citation for part 635 continues to read as 
follows:

    Authority: 16 U.S.C. et seq.; 16 U.S.C. 1801 et seq.
    4. In Sec.  635.21, paragraph (d)(3)(iv) is removed and paragraphs 
(a)(3), (d)(1), (d)(3)(i), (d)(3)(ii), and (d)(3)(iii) are revised to 
read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

    (a) * * *
    (3) All vessels that have pelagic and bottom longline gear onboard 
and that have been issued, or are 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 must 
possess inside the wheelhouse the document provided by NMFS entitled 
``Careful Release Protocols for Sea Turtle Release with Minimal 
Injury,'' and must also post inside the wheelhouse the sea turtle 
handling and release guidelines provided by NMFS.
* * * * *
    (d) * * *
    (1) If bottom longline gear is onboard a vessel issued a permit 
under this part, persons aboard that vessel may not fish or deploy any 
type of fishing gear in the following areas:
    (i) The mid-Atlantic shark closed areas from January 1 through July 
31 each calendar year; and

[[Page 15687]]

    (ii) The areas designated at Sec.  622.33(a) of this chapter, year-
round.
* * * * *
    (3) * * *
    (i) Bycatch mitigation measures. The operator of a vessel required 
to be permitted under this part and that has bottom longline gear on 
board must undertake the bycatch mitigation measures under paragraphs 
(c)(5)(i) and (c)(5)(ii)(A) - (C) of this section to release sea 
turtles, prohibited sharks, or smalltooth sawfish, as appropriate.
    (ii) Possession and use of required mitigation gear. The equipment 
listed in paragraph (c)(5)(i) of this section must be carried on board 
and must be used to handle, release, and disentangle hooked or 
entangled sea turtles, prohibited sharks, or smalltooth sawfish in 
accordance with requirements specified in paragraph (d)(3)(ii) of this 
section.
    (iii) Handling and release requirements. Sea turtle bycatch 
mitigation gear, as required by paragraph (d)(3)(ii) of this section, 
must be used to disengage any hooked or entangled sea turtles as stated 
in paragraphs (c)(5)(ii)(A) - (C) of this section. This mitigation gear 
should also be employed to disengage any hooked or entangled species of 
prohibited sharks as listed in category D of Table 1 of Appendix A to 
this part. If a smalltooth sawfish is caught, the fish should be kept 
in the water while maintaining water flow over the gills and examined 
for research tags and the line should be cut as close to the hook as 
possible. Dehooking devices should not be used to release smalltooth 
sawfish.
* * * * *
    5. In Sec.  635.71, paragraph (a)(33) is revised to read as 
follows:


Sec.  635.71  Prohibitions.

* * * * *
    (a) * * *
    (33) Deploy or fish with any fishing gear from a vessel with 
pelagic or bottom longline gear on board without carrying the required 
sea turtle bycatch mitigation gear, as specified at Sec.  
635.21(c)(5)(i) for pelagic longline gear and Sec.  635.21(d)(3)(i) for 
bottom longline gear. This equipment must be utilized appropriately, as 
specified in Sec.  635.21 (c)(5)(ii) and (d)(3)(ii) for pelagic and 
bottom longline gear, respectively.
* * * * *
[FR Doc. E6-4582 Filed 3-28-06; 8:45 am]
BILLING CODE 3510-22-S