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Atlantic Highly Migratory Species; Atlantic Commercial Shark Management Measures; Gear Operation and Deployment; Complementary Closures
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 29, 2006 (Volume 71, Number 60)]
[Proposed Rules]
[Page 15680-15687]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr06-31]
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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: SF1.082305E@noaa.gov.
?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 < greek-
i>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