Atlantic Highly Migratory Species (HMS); Pelagic Longline Fishery; Final Rule [Rules and Regulations] [07/06/2004]

VETS Final Rule

Atlantic Highly Migratory Species (HMS); Pelagic Longline Fishery; Final Rule [07/06/2004]

[PDF Version]

Volume 69, Number 128, Page 40733-40758

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Part IV

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Parts 223 and 635

Atlantic Highly Migratory Species (HMS); Pelagic Longline Fishery;
Final Rule

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 635

[Docket No. 040202035-4197-02; I.D. 112403A]
RIN 0648-AR80

Atlantic Highly Migratory Species (HMS); Pelagic Longline Fishery

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

ACTION: Final rule.

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SUMMARY: This final rule implements new sea turtle bycatch and bycatch
mortality mitigation measures for all Atlantic vessels that have
pelagic longline (PLL) gear onboard and that have been issued, or are
required to have, Federal HMS limited access permits, consistent with
the requirements of the Endangered Species Act (ESA), the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act
or M-S Act), and other domestic laws. These measures include mandatory
circle hook and bait requirements, and mandatory possession and use of
sea turtle release equipment to reduce bycatch mortality. This final
rule also allows vessels with pelagic longline gear onboard that have
been issued, or are required to have, Federal HMS limited access
permits to fish in the Northeast Distant (NED) Closed Area, if they
possess and/or use certain circle hooks and baits, sea turtle release
equipment, and comply with specified sea turtle handling and release
protocols.

DATES: This final rule is effective August 5, 2004, except for
amendment 2 to Sec. 635.2, and amendment 3 to Sec. 635.21(c)(2)(v)
and (c)(5)(iv) which are effective June 30, 2004.

ADDRESSES: For copies of the Final Supplemental Environmental Impact
Statement/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (FSEIS/RIR/FRFA) for this regulatory action, and the Final
Environmental Impact Statement that the FSEIS supplements (issued by
NMFS in April 1999), contact Christopher Rogers, Chief, Highly
Migratory Species Management Division, 1315 East-West Highway, Silver
Spring, MD 20910 or at (301) 713-1917 (fax). These documents are also
available on the Internet at http://www.nmfs.noaa.gov/sfa/hms/.

FOR FURTHER INFORMATION CONTACT: Russell Dunn, Greg Fairclough, or
Richard A. Pearson at 727-570-5447 or 727-570-5656 (fax).

SUPPLEMENTARY INFORMATION: The Atlantic tuna and swordfish fisheries
are managed under the authority of the Magnuson-Stevens Act and the
Atlantic Tunas Convention Act (ATCA). Atlantic sharks are managed under
the authority of the Magnuson-Stevens Act. The Fishery Management Plan
for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), finalized in 1999,
is implemented by regulations at 50 CFR part 635. The Atlantic pelagic
longline fishery is also subject to the requirements of the ESA and the
Marine Mammal Protection Act (MMPA).
NMFS published a Notice of Intent (NOI) on November 28, 2003, (68
FR 66783) to prepare an SEIS under the National Environmental Policy
Act to assess the potential effects of a proposed rule to reduce sea
turtle bycatch and bycatch mortality in the Atlantic HMS pelagic
longline fishery. On February 11, 2004, NMFS published the proposed
rule (69 FR 6621), and on February 13, 2004, the Environmental
Protection Agency (EPA) announced the availability of the Draft SEIS
(69 FR 7215). NMFS held three public hearings during the public comment
period, which closed on March 15, 2004, for both the proposed rule and
the Draft SEIS.
Information regarding the management history of sea turtle bycatch
reduction efforts in the fishery, 2002 estimates of loggerhead and
leatherback sea turtle interactions in the PLL fishery, the results of
an NED research experiment, and proposed commercial management measures
was provided in the preamble of the proposed rule and is not repeated
here. Additional information regarding the alternatives analyzed may be
found in the FSEIS/RIR/FRFA, available from NMFS (see ADDRESSES).

Final Management Measures

As discussed in the Response to Comments section below, NMFS has
modified the final management measures. A description of specific
changes to the proposed rule may be found after the Response to
Comments section. These final management measures best meet the purpose
and scope of this rulemaking by providing comprehensive and meaningful
protection to Atlantic sea turtles, minimizing adverse economic impacts
to the extent practicable, and achieving legal and policy obligations.
By providing a successful roadmap for sea turtle bycatch and bycatch
mortality reduction, NMFS will provide the impetus for other nations to
adopt similar sea turtle conservation measures, thereby bringing truly
meaningful protection to sea turtles throughout their entire ranges.
This final rule allows vessels with pelagic longline gear onboard
and that have been issued, or are required to have, Federal HMS limited
access permits to fish in the NED Closed Area, if they comply with
certain requirements. Vessels are limited, at all times, to possessing
onboard and/or using only 18/0 or larger circle hooks with an offset
not to exceed 10 degrees. Only whole Atlantic mackerel and squid baits
may be possessed and/or utilized with these allowable hooks. Also, only
hooks that have been offset by the manufacturer are allowed. Vessels
must possess and use sea turtle release equipment, and comply with
specified sea turtle handling and release protocols.
Vessels fishing outside of the NED Closed Area with pelagic
longline gear onboard and that have been issued, or are required to
have, Federal HMS limited access permits are limited, at all times, to
possessing onboard and/or using only 16/0 or larger non-offset circle
hooks, and 18/0 or larger circle hooks with an offset not to exceed 10
degrees. Only whole finfish and squid baits may be possessed and/or
utilized with these allowable hooks. Also, only hooks that have been
offset by the manufacturer are allowed. Vessels must possess and use
sea turtle release equipment, and comply with specified sea turtle
handling and release protocols.
The following circle hooks are known to meet the minimum size
requirements specified in the final regulations: Lindgren-Pitman 18/0
circle hook; Mustad model number 39960 18/0 circle hook; and, Mustad
model number 39960 16/0 circle hook. Other circle hooks, meeting the
size requirements specified in the final regulations, are also allowed.
The requirement to use non-stainless steel hooks remains in effect.
The final sea turtle bycatch release equipment requirements,
described below, similarly apply to all Atlantic vessels that have
pelagic longline gear onboard and that have been issued, or are
required to have, Federal HMS limited access permits. Diagrams for
several of the pieces of equipment are provided in Appendix B1 to the
FSEIS prepared for this final rule in a document entitled,
``Requirements and Equipment Needed for the Careful Release of Sea
Turtles Caught in Hook and Line Fisheries.'' This document is available
on the HMS website at http://www.nmfs.noaa.gov/sfa/hms. Diagrams for

some of the equipment are also

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provided in the final rule implementing dehooking devices in the
shallow-set component of the Hawaii-based longline fishery (69 FR
17329). Minimum design standards for all required equipment are
provided in this final rule.
The following new, or newly-revised, release gears are required as
a result of this final rule: (A) a long-handled line clipper or cutter;
(B) a long-handled dehooker for ingested hooks; (C) a long-handled
dehooker for external hooks; (D) a long-handled device to pull an
``inverted V''; (E)a dipnet; (F) a standard automobile tire; G) a
short-handled dehooker for ingested hooks; (H) a short-handled dehooker
for external hooks; (I) long-nose or needle-nose pliers; (J) a bolt
cutter; (K) a monofilament line cutter; and, (L) two different types of
mouth openers and mouth gags (including either a block of hard wood, a
set of three canine mouth gags, a set of two sturdy dog chew bones, a
set of two rope loops covered with hose, a hank of rope, a set of 4 PVC
splice couplings, or a large avian oral speculum).
Items A - D above are intended to be used for turtles that are not
boated. Items E - L above are intended to be used for turtles that are
brought onboard. The long-handled dehooker for ingested hooks required
in Item B would also satisfy the requirement for Item C. If a 6-foot
(1.83 m) J-style dehooker is used for Item C, it would also satisfy the
requirement for Item D. Similarly, the short-handled dehooker for
ingested hooks required for Item G would also satisfy the requirement
for Item H. NMFS recommends, but does not require, that one type of
mouth opener/mouth gag allow for hands-free operation of the dehooking
device or other tool, after the mouth gag is in place. Only a canine
mouth gag would satisfy this recommendation. Also, as described in
Appendix B1 of the FSEIS prepared for the final rule, a ``turtle
tether'' and a ``turtle hoist'' are recommended by NMFS, but are not
required.
Table 1 provides the initial list of approved sea turtle bycatch
release equipment meeting the minimum design standards. At this time,
NMFS is aware of only one manufacturer of long-handled and short-
handled dehookers for ingested hooks that meet the minimum design
standards. However, this rule allows for approval of other devices, as
they become available, if they meet the minimum design standards. Line
cutters or line clippers (items A and K) and dehookers (items B, C, G,
H) not included on the list must be NMFS-approved before being used.
NMFS will publish a notice in the Federal Register of any new items
approved as meeting the design standards.

Table 1. NMFS-Approved Models For Equipment Needed For The Careful Release of Sea Turtles Caught In Hook And Line Fisheries.
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Required Item NMFS-Approved Models
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(A) Long-handled line cutter*.............................. LaForce Line Cutter; or Arceneaux Line Clipper
(B) Long-handled dehooker for ingested hooks*.............. ARC Pole Model Deep-Hooked Dehooker (Model BP11)
(C) Long-handled dehooker for external hooks*\1\........... ARC Model LJ6P (6 ft (1.83 m)); or ARC Model LJ36; or ARC Pole Model Deep-Hooked Dehooker
(Model BP11); or ARC 6 ft. (1.83 m) Pole Big Game Dehooker (Model P610)
(D) Long-handled device to pull an ``inverted V''\2\....... ARC Model LJ6P (6 ft.)(1.83 m); or Davis Telescoping Boat Hook to 96 in. (2.44 m) (Model
85002A); or West Marine F6H5 Hook and F6-006 Handle
(E) Dipnet**............................................... ARC 12-ft. (3.66-m) Breakdown Lightweight Dip Net Model DN6P (6 ft. (1.83 m)); or ARC Model
DN08 (8 ft.(2.44 m)); or ARC Model DN 14 (12 ft. (3.66 m) ); or ARC Net Assembly & Handle
(Model DNIN); or Lindgren-Pitman, Inc. Model NMFS Turtle Net
(F) Standard automobile tire**............................. Any standard automobile tire free of exposed steel belts
(G) Short-handled dehooker for ingested hooks**............ ARC 17-inch (43.18-cm) Hand-Held Bite Block Deep-Hooked Turtle Dehooking Device (Model
ST08)
(H) Short-handled dehooker for external hooks\3\**......... ARC Hand-Held Large J-Style Dehooker (Model LJ07); or ARC Hand-Held Large J-Style Dehooker
(Model LJ24); or ARC 17-inch (43.18-cm) Hand-Held Bite Block Deep-Hooked Turtle Dehooking
Device (Model ST08); or Scotty's Dehooker
(I) Long-nose or needle-nose pliers**...................... 12-in. (30.48-cm) S.S. NuMark Model 030281109871; or any 12-inch (30.48-cm)
stainless steel long-nose 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 meeting design standards (e.g., Olympia Tools Long-Handled Wire
Brush and Scraper (Model 974174))
(L2) Set of (3) canine mouth gags.......................... Jorvet Model 4160, 4162, and 4164
(L3) Set of (2) sturdy dog chew bones...................... Nylabone[reg] (a trademark owned by T.F.H. Publications, Inc.); or Gumabone[reg] (a
trademark owned by T.F.H. Publications, Inc.); or Galileo[reg] (a trademark 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
approximately 2 - 4 inches (5.08 cm - 10.16 cm) in thickness
(L6) Set of (4) PVC splice couplings....................... A set of (4) Standard Schedule 40 PVC splice couplings (1-inch (2.54-cm), 1 1/4-inch 3.175-
cm), 1 1/2- inch (3.81-cm), and 2-inch (5.08-cm)
(L7) Large avian oral speculum............................. Webster Vet Supply (Model 85408); or Veterinary Specialty Products (Model VSP 216-08);
orJorvet (Model J-51z); or Krusse (Model 273117)
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* Items (A) - (D) required for turtles not boated.
** Items (E) - (L) required for boated turtles.
\1\The long-handled dehooker for Item B would meet the requirement for Item C.
\2\If a 6-ft (1.83 m) J-Style dehooker is used to satisfy the requirement for Item C, it would also satisfy the requirement for Item D.
\3\The short-handled dehooker for Item G would meet the requirement for Item H.

The final management measures pertaining to sea turtle handling and
careful release protocols, described below, apply to all Atlantic
vessels that have pelagic longline gear onboard and have been issued,
or are required to have, Federal HMS limited access permits. The
existing requirement to post a plastic placard inside the wheelhouse
describing sea turtle handling and release guidelines remains in
effect, as does the requirement to adhere to existing sea turtle
handling and resuscitation procedures specified at 50 CFR
223.206(d)(1). Additional sea turtle handling requirements are
contained in this rule to improve the care of sea turtles on deck, and
to facilitate the removal of fishing line and hooks from incidentally-
captured sea turtles. The newly-required procedures

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for hook removal and careful release of sea turtles are described in
substantial detail in a document entitled, ``Careful Release Protocols
for Sea Turtle Release with Minimal Injury.'' This document is required
to be onboard all PLL vessels. It is provided in Appendix B2 of the
FSEIS prepared for this final rule, which is available on the HMS
website at http://www.nmfs.noaa.gov/sfa/hms. The Southeast Fisheries

Science Center (SEFSC) has also made the document available as NOAA
Technical Memorandum NMFS-SEFSC-524 at http://www.sefsc.noaa.gov/seaturtletechmemos.jsp
.

To better assist industry in complying with the sea turtle careful
release protocols, NMFS has established a Point of Contact (POC) to
answer questions regarding the required release equipment, techniques,
and problems, and to share solutions and successful experiences. The
address for the industry POC is: Charles Bergman, 3209 Frederic Street,
P.O. Drawer 1207, Pascagoula, MS, 39568-1207. The POC may also be
contacted at 228-762-4591 ext. 259, or at 228-623-0748 (cellular), or
via E-mail at charles.bergman@noaa.gov.

ESA Consultation

In November, 2003, NMFS received information that the Incidental
Take Statement (ITS) specified for the HMS pelagic longline fishery in
the June 14, 2001, Biological Opinion (BiOp) may have been exceeded for
loggerheads in 2002, and for leatherbacks in 2001 and 2002. A final
report on the estimated bycatch levels in the pelagic longline fishery
was issued on December 12, 2003 (NOAA Technical Memorandum NMFS-SEFSC
515 (2003)).
Based upon the termination of the NED research experiment and
preliminary information on sea turtle interactions, NMFS began
preparation of a proposed rule to address sea turtle bycatch and
bycatch mortality in the fishery. NMFS also requested reinitiation of
consultation on the HMS pelagic longline fishery, pursuant to Section 7
of the ESA, in January, 2004. The proposed rule published on February
11, 2004 (69 FR 6621), and the notice of availability (NOA) of the
DSEIS published on February 13, 2004 (69 FR 7215).
Based upon comment received during the public comment period, a re-
examination of data pertaining to reductions in bycatch and bycatch
mortality associated with various hook and bait combinations, and other
information on sea turtles, NMFS considered modification of the
measures in the proposed rule.
Taking into consideration the proposed modifications, NMFS' Office
of Protected Resources issued a BiOp on June 1, 2004, that concluded
that the long-term continued operation of the Atlantic HMS PLL fishery
is not likely to jeopardize the continued existence of loggerhead,
green, hawksbill, Kemp's ridley, or olive ridley sea turtles; and, is
likely to jeopardize the continued existence of leatherback sea
turtles. The NMFS Southeast Regional Office posted the new BiOp on its
website, at http://sero.nmfs.noaa.gov/, on June 3, 2004.

The June 1, 2004, BiOp identified a Reasonable and Prudent
Alternative (RPA) necessary to avoid jeopardy, and listed the
Reasonable and Prudent Measures (RPMs), and Terms and Conditions (T &
Cs) necessary to authorize continued take as part of the revised ITS.
The RPA includes: (1) maximization of PLL gear removal to maximize
post-release survival of incidentally-captured sea turtles; (2)
improvement of the accuracy and timeliness of sea turtle reporting and
analysis; (3) additional research on hook and bait combinations; and,
(4) corrective action to prevent long-term elevated take and mortality.
NMFS will undertake additional rulemaking and non-regulatory actions,
as necessary, to implement any other management measures that are
required under the BiOp. The regulatory and non-regulatory actions are
described below.
Each element of the RPA has several sub-components, which are more
fully described in the June 1, 2004, BiOp. Briefly, these include
distribution of training materials to demonstrate the careful release
of sea turtles, establishment of a fishery outreach point of contact
(POC), implementation of training workshops and certification, enhanced
observer coverage, quarterly and annual monitoring of take estimates,
and further research and evaluation of circle hooks.
In addition, the BiOp specifies that, during the course of each
three-year period, NMFS will review each quarterly and annual take
estimate report as soon as it becomes available. If these reports
indicate that the PLL fishery is not likely to stay within the
authorized three-year take levels specified in the BiOp, NMFS will take
corrective action to avoid long-term elevations in sea turtle takes and
ensure that the ITS is not exceeded. These actions may include time-
area closures, additional gear modifications or restrictions, or any
other action that is deemed appropriate.
The corrective action described above is intended to ensure that
total leatherback takes do not exceed long-term average take rates,
over three-year periods. The BiOp also establishes performance
standards to ensure that progress in improved sea turtle handling
techniques and gear removal is being made by the PLL fleet to reach net
mortality ratios of 13.1% for leatherbacks and 17.0% for loggerheads by
the beginning of 2007 (the long-term targets). These annual performance
targets are based on consistent, annual progress in 2004, 2005, and
2006. They are presented in Table 2.

Table 2. Net Mortality Rate Performance Standards.
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Assumed 3rd & Target for 1st
Species 4th Quarters, Target for 1st Target for 1st Quarter, 2007
2004 Quarter, 2005 Quarter, 2006 and onward
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Leatherbacks............................ 32.8% 26.2% 19.6% 13.1%
Loggerheads............................. 21.8% 20.2% 18.6% 17.0%
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To ensure that the net mortality performance targets are attained,
NMFS will monitor post-hooking survival through 2006. If fleet-wide
annual gear removal rates are not sufficient to meet the performance
targets, action must be taken to offset the increased mortality rates
and bring overall anticipated mortality down to the levels specified in
Table 2. The June 1, 2004, BiOp specifically mentions the possibility
of closing the entire Gulf of Mexico from April through September, if
necessary, to offset increased mortality rates and bring overall
anticipated mortality down to the levels specified in Table 2. However,
overall, the timing and duration of a closure must be sufficient to
offset, through reduced interactions, the effects of the higher post-
release mortality associated with the poor gear

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removal levels, and may be longer or shorter than six months. If a
closure is needed, an alternative closure or closures may be
substituted if equally effective at reducing leatherback sea turtle
bycatch. Any time-area closure(s), if implemented, would be removed
when data collected on gear removal and post-release survival indicate
that fleet-wide interaction types and gear removal rates have met the
post-release mortality performance targets specified above.
Incidental take is defined as take that is incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity. Under
the terms of section 7(b)(4) and section 7(o)(2) of the ESA, taking
that is incidental to, and not intended as part of the agency action,
is not considered to be prohibited, provided that such taking is in
compliance with the RPMs and T & Cs of the ITS. The June 1, 2004, BiOp
established an ITS based upon total takes over three-year periods,
beginning in 2004. Table 3 contains the new ITS for Atlantic sea
turtles in the HMS PLL fishery.

Table 3. Anticipated incidental takes of listed species in the HMS
pelagic longline fishery.
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Number Captured
Species Number Captured each Subsequent 3-
from 2004-2006 Year Period
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Leatherback turtle.............. 1981 1764
Loggerhead turtle............... 1869 1905
Green, Hawksbill, Kemp's ridley, 105 105
and Olive ridley turtle, in
combination....................
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If the ITS is exceeded, such incidental take represents new
information requiring reinitiation of consultation and a review of the
RPMs that have been provided for possible modification.

Response to Comments

During the public comment period, individuals and groups provided
comments on the DSEIS/RIR/IRFA and its proposed rule via letter, fax,
E-mail, or participation at public hearings. The comments are
summarized below, together with NMFS' responses. The comments and
responses are categorized by major subject headings.
1. General Comments
Comment 1: Commenters indicated that oceanographic, biological and
physical differences between the Northeast Distant (NED) area, south
Atlantic, and Gulf of Mexico (GOM) must be taken into consideration.
Specifically, commenters stated that the results of an experiment in
the NED should not be used to project impacts or implement management
measures in other areas, because there are differences in oceanographic
conditions, water temperature, currents, thermoclines, turtle
abundance, turtle sizes, fish abundance, and fish sizes.
Response: For three years, the Agency committed substantial
resources to evaluating fishing gear modifications and strategies to
reduce and mitigate interactions between endangered and threatened sea
turtles and pelagic longline (PLL) fishing gear. The area for the
research was the NED statistical reporting area in the Western Atlantic
Ocean. Between 2001 and 2003, over 1,200 pelagic longline sets were
made to test, among other things, the benefits of using large circle
hooks. The research yielded robust and promising results. Based on that
research, consideration of geographical differences, and other
available information on sea turtle bycatch reduction efforts,
described more in responses to Comments 2-5, the use of large circle
hooks (as compared to ``J''-hooks) and careful release techniques are
expected to be successful in reducing sea turtle interactions and
mortality rates throughout the whole fishery.
Comment 2: Several commenters stated that the Agency must recognize
differences in the prosecution of the PLL fishery in the NED, south
Atlantic, and GOM. PLL vessels in the GOM frequently target yellowfin
tuna (YFT) and other tuna species; PLL vessels in the mid-Atlantic
often engage in mixed trips for smaller tunas (YFT and albacore),
swordfish, dolphin, and wahoo; and, PLL vessels in the NED primarily
fish for larger swordfish and bigeye tuna (BET). Commenters noted that
there may be differences in the fishing gears used, fishing techniques,
depth of gear deployed, prey species, target species, and socio-
economic factors. For vessels fishing outside the NED, many of these
comments opposed preferred alternative A3 in the DSEIS (18/0 offset
circle hook with mackerel, or 18/0 non-offset circle hook with squid)
and were supportive of non-preferred alternative A5 (16/0 hook with an
offset not to exceed 10 degrees). Many commenters supported preferred
alternative A10 in the DSEIS (18/0 offset or non-offset circle hook
with mackerel or squid bait, respectively) for fishing in the NED.
Response: The U.S. PLL fishery for Atlantic HMS is a far-ranging
fishery that targets swordfish, YFT, or BET tuna in different areas and
in different seasons. Secondary target species include dolphin,
albacore tuna, pelagic sharks, and several species of large coastal
sharks. Permit holders range from Maine to Texas, and fishing
techniques vary by region according to target species. Vessel operators
may be opportunistic, switching gear style and making subtle changes,
oftentimes during the same trip, to maximize economic opportunities. In
addition, the economic characteristics of vessels fishing in New
England (including the NED) and the Carribean regions differ from those
fishing predominantly in the mid-Atlantic, south Atlantic and Gulf of
Mexico regions. Economic studies confirm that PLL vessels fishing
predominantly in New England and the Carribean regions generate
approximately five times the amount of net revenues per trip when
compared to vessels fishing predominantly in the mid-Atlantic, south
Atlantic, and GOM regions (Porter et al, 2001).
Extensive public comment indicated that the proposed measures could
cause severe economic hardship, leading to possible business
foreclosures in the mid-Atlantic, south Atlantic, and GOM. Based upon
public comment and a re-examination of data pertaining to reductions in
bycatch and bycatch mortalities associated with various hooks and baits
(see responses to Comments 3 and 5), the Agency has modified the final
regulations to address geographical differences by allowing, outside
the NED, either 18/0 circle hooks with an offset not to exceed ten
degrees, or 16/0 non-offset circle hooks, and either squid or whole
finfish bait. These modifications will provide additional flexibility
to target species that are more frequently encountered outside of the
NED. The final circle hook and bait regulations, and the requirements
to possess and use sea turtle handling and release gears, are expected
to significantly reduce sea

[[Page 40738]]

turtle interactions and mortalities throughout the PLL fishery.
Therefore, to the extent practicable, this final rule minimizes adverse
economic impacts on fishing communities, as required by National
Standard 8 of the M-S Act, and complies with other applicable Federal
law. However, as described in the June 1, 2004, BiOp, if the management
measures contained in this final rule do not achieve certain specified
levels of reductions in leatherback mortalities, the Agency must
initiate a future rulemaking to consider other additional measures,
consistent with the 2004 BiOp.
Comment 3: Additional research on circle hooks and baits, including
their subsequent effects on turtle interactions, post-hooking mortality
rates, and target species catches, should be undertaken in areas that
more closely exemplify conditions in the south Atlantic and GOM, and
the final regulations should be based on these studies.
Response: Existing scientific studies, including the NED research
experiment, and GOM observer data support the use of large circle hooks
and careful release techniques to reduce sea turtle interaction rates
and mortality rates throughout the PLL fishery. Based upon a review of
available information, the SEFSC's principal investigators for the NED
research experiment have advised allowing the use of a 16/0 non-offset
circle hook in the GOM and other areas outside the NED. Available data
indicate potential adverse impacts of a larger hook on target species
(particularly, yellowfin tuna) catches.
A significant reduction in loggerhead sea turtle mortality is
anticipated through use of the 16/0 non-offset circle hook. Studies in
the Azores PLL fishery in 2000 and 2001 (Bolten et al., 2002) and in
Canada (Javitech Ltd., 2002) showed a significant percentage of 16/0
circle hooks hooking loggerhead turtles in the mouth. Circle hooks
improve the probability of survival after an interaction, relative to
``J''-hooks, because they usually hook in the jaw and are not
swallowed; this appears to be true for many marine species and circle
hook sizes (Lucy and Studholme, 2002). Observer data from the GOM
(Garrison, 2003b), showing no loggerhead turtles observed captured on
circle hooks, and a lower average catch rate of leatherback turtles on
15/0 and 16/0 circle hooks compared to 7/0 and 8/0 ``J''-hooks, support
this conclusion.
Leatherback sea turtle interactions primarily result from ``foul
hooking,'' i.e., hooking in the flipper, shoulder, or armpit. Circle
hooks are expected to reduce foul hooking because the point turns in
towards the shank and is effectively shielded. The NED experiment
demonstrated that 18/0 and 20/0 circle hooks reduce the number of
turtles foul hooked by PLL gear. Canadian observer data (Javitech Ltd.,
2002) and GOM observer data (Garrison, 2003b) also show reductions in
catch rates of leatherback turtles on 16/0 circle hooks as compared to
``J''- hooks. SEFSC scientists expect that a 16/0 non-offset circle
hook will be just as efficient as an 18/0 circle hook at reducing foul
hooking of leatherback turtles, and possibly more efficient, because
the gap between the point and the shank on a 16/0 hook is smaller than
that of an 18/0 hook. The requirement that 16/0 circle hooks be non-
offset is an additional precautionary measure to reduce the likelihood
that the smaller hooks will get swallowed or lodged in a turtle's
throat or esophagus, or result in foul-hooking.
This final rule, which allows the use of 16/0 or larger non-offset
circle hooks outside the NED, is based upon the above-described studies
and other data, which constitute the best available scientific
information at this time. These measures are expected to have
significant conservation benefits for sea turtles. However, the Agency
will continue to monitor and conduct research to evaluate bycatch
mitigation techniques and impacts on target and non-target species. In
fact, there is research currently underway in the GOM to compare target
catches using 16/0 and 18/0 circle hooks, but that information was not
sufficiently developed in time to be incorporated in the analyses in
the FSEIS prepared for this rule. The 2004 BiOp also requires
additional research and/or analysis on the effects of different
offsets, evaluation of the leatherback bycatch reduction, confirmation
of the effectiveness of the hook and bait combinations, and improved
data collection and reporting from observed trips to aid in completing
these analyses.
Comment 4: Some commenters indicated that portions of the GOM and
the Northeast Coastal (NEC) area should be closed to PLL fishing (as
described in non-preferred alternatives A12, A13, A14, and A15 of the
DSEIS) because sea turtles taken in those regions are larger than those
taken in the NED, and because the hook and bait treatments tested in
the NED are unproven in warmer waters.
Response: This final rule will require the use of large circle
hooks and the possession and use of specific gear removal equipment. In
addition, the Agency will engage in outreach and education efforts, and
pursue training and certification in sea turtle handling and release
protocols throughout the PLL fishery. These management actions are
expected to provide significant conservation benefits to sea turtles of
all sizes. Additional adaptive management measures, including
consideration of a Gulf of Mexico or alternative closure(s), would be
instituted if monitoring indicates that requirements set forth in the
2004 BiOp for this fishery are not being met.
Comment 5: Several comments relating to the data used to develop
the DSEIS and proposed rule included: (1) Other studies such as the
Azores study (Bolten et al., 2002) and the Garrison analysis (2003)
should have been included; (2) the NED data are preliminary and should
not be relied upon; (3) the number of observed sea turtle interactions
is probably too low; and, (4) there is no information in the DSEIS
regarding the number of sea turtle mortalities. Several other data
comments are discussed under ``protected resources issues'' below.
Response: The best scientific information available has been used
in developing the final rule, including information from Bolten et al.
(2002) and Garrison (2003). Hook and bait treatments that were found to
be effective during the three-year NED research experiment will be
directly applied to PLL fishing in the NED closed area. The NED
experimental data are robust, and measures to be applied in the NED are
expected to replicate the impressive bycatch reduction results that
were obtained there. In other areas, slightly smaller (16/0 or larger),
non-offset circle hooks, or 18/0 circle hooks with an offset not to
exceed 10 degrees, will be required. These measures are supported by
the studies and recommendations described in the response to Comment 3.
The number of observed sea turtle interactions is derived directly
from trips with observers onboard (3.7 percent of sets were observed
with 273 observed interactions in 2001; 8.9 percent of sets were
observed with 335 interactions in 2002). The total estimated number of
interactions is calculated by determining sea turtle catch per hook
using observed sets, and then expanding that by the total number of
hooks fished as reported in the mandatory PLL logbook. A total of 1,208
leatherback interactions were estimated during 2001, and 962 during
2002. A total of 312 loggerhead interactions were estimated during
2001, and 575 during 2002. Potential sources of bias and uncertainty in
these estimates are provided in ``Estimated Bycatch of Marine Mammals
and Turtles in the U.S. Atlantic Pelagic Longline Fleet

[[Page 40739]]

During 2001 - 2002,'' (Garrison, 2003a). That report estimates 13
loggerhead instantaneous mortalities (i.e., dead when brought to the
boat) and 0 leatherback instantaneous mortalities in 2001. For 2002, 0
loggerhead instantaneous mortalities and 33 leatherback instantaneous
mortalities are estimated. Post-interaction mortality estimates are
discussed in the 2004 BiOp.
2. Proposed Restrictions on Allowable Baits
Comment 6: Many commenters stated that requiring only Atlantic
mackerel or squid bait, depending upon whether the hook is offset or
not, would not provide enough flexibility to adapt to changing
conditions that may occur during longer PLL fishing trips. Commenters
stated that both types of baits should be allowed to be possessed and
used. One commenter requested that there be no bait restrictions,
stating that hook type, and not bait, is the most important factor in
reducing sea turtle interactions. Several commenters stated that PLL
vessels in the GOM typically utilize thread herring and Spanish
sardines for bait, thus, requiring non-indigenous bait could result in
adverse economic impacts due to the non-availability of such bait or
potential reductions in the catches of target species. Other commenters
stated the use of any finfish other than whole Atlantic mackerel could
significantly reduce turtle conservation benefits.
Response: The final rule has been modified to allow the use of both
Atlantic mackerel and squid bait inside the NED, and whole finfish and
squid bait outside the NED, with specified circle hooks. The NED
research experiment demonstrated that significant sea turtle
conservation benefits may be obtained using large circle hooks with
certain baits (Watson et al., March 2, 2004). Relative to the 9/0
``J''-hook baited with squid, the combination of 18/0 circle hooks and
mackerel bait reduced the loggerhead interaction rate by 86 - 90
percent, and the leatherback interaction rate by 65 percent. The 18/0
circle hooks baited with squid reduced the loggerhead interaction rate
by 65 - 87 percent, and the leatherback interaction rate by 64 - 90
percent. In 2002, mackerel bait and squid bait were both tested on 9/0
``J'' hooks to investigate the effect of bait on turtle interaction
rates. When compared to squid bait, mackerel bait reduced loggerhead
interactions by 71 percent, and leatherback interactions by 66 percent.
Mackerel bait also increased swordfish catch but significantly reduced
tuna catch on the control 9/0 ``J''-hooks, compared to squid. Because
both mackerel and squid are effective at reducing turtle interactions,
and there are differences in the effectiveness of the baits with regard
to the target species catches, the final rule allows either mackerel
and/or squid bait to be possessed and/or used in the NED, but only with
18/0 or larger circle hooks with an offset not to exceed 10 degrees.
This modification will allow fishermen to adapt to changing conditions,
and replicate the impressive bycatch and bycatch mortality reductions
that were achieved in the NED experiment.
The response to Comment 3 explains the significant sea turtle
conservation benefits that are anticipated by requiring the use of
either 16/0 or larger non-offset circle hooks, or 18/0 circle hooks
with an offset not to exceed 10 degrees outside the NED. To provide
additional flexibility and to mitigate for potential adverse economic
impacts associated with non-availability of Atlantic mackerel or
reduced catches due to the use of non-indigenous baits, the final rule
allows both whole finfish and squid bait to be used outside the NED,
with either of the specified hook types. This rule, along with
outreach, education, training and other related actions, are expected
to have significant conservation benefits for sea turtles. See the
response to Comment 4 for further explanation.
Comment 7: One commenter stated that observed PLL sets in the GOM
for 1992 - 2002 showed that circle hooks with squid produced the
highest interactions with leatherback sea turtles whereas circle hooks
with fish (primarily dead Spanish sardines) had the lowest catch rates.
Response: While circle hooks baited with squid in the GOM did show
higher leatherback interactions than circle hooks baited with fish,
there were a very low number of circle hook sets that were baited with
squid. Consequently, it is not possible to draw a statistically
significant conclusion regarding bait effects from the GOM data
(Garrison, 2003). The Agency will continue to examine the effects of
bait type throughout the PLL fishery.
Comment 8: One commenter indicated that specifying only Atlantic
mackerel or squid bait could result in the overfishing of these
species.
Response: Atlantic mackerel (Scomber scombrus), shortfin squid
(Illex illecebrosus), and longfin squid (Loligo pealeii) are managed by
the Mid-Atlantic Fishery Management Council under the provisions of the
Atlantic Mackerel, Squid and Butterfish Fishery Management Plan (FMP).
Any landings of these species for bait in the PLL fishery must be in
accordance with the provisions of this FMP. Atlantic mackerel are
managed using an annual quota. Management measures for shortfin squid
include limited entry, annual quota specifications, and trip limits
when 95 percent of the annual quota is reached. Management measures for
longfin squid include limited entry, seasonal quota specifications, and
gear restrictions. As of January 2000, the Atlantic mackerel resource
was not overfished, and overfishing was not occurring. The stock status
of shortfin squid was unknown through 2002; however, overfishing was
not likely to be occurring (NEFSC 37\th\ SARC). Longfin squid were not
likely to be overfished, nor was it likely that overfishing was
occurring, as of 2001 (NEFSC 34\th\ SARC). Because squid and mackerel
are currently being effectively managed through the existing FMP, the
Agency does not expect the management measures in this final rule to
result in an appreciable increase in fishing effort for these species,
or cause overfishing.
3. Proposed Restrictions on Allowable Hooks
Comment 9: The Agency received a wide range of comments regarding
circle hooks, in general. One commenter stated that circle hooks will
not reduce sea turtle bycatch or bycatch mortality, and that the
existing data are too preliminary to be relied upon. Another comment
stated that the recent increase in turtle interactions in the GOM was
attributable to many vessels switching from circle hooks to small
``J''-hooks following the prohibition on live bait, and that the proper
solution is to require circle hooks. Several commented that the most
significant benefits to sea turtles would be realized by using circle
hooks rather than ``J''-hooks, and that the size of hooks is a less
important factor. One commenter opposed the use of circle hooks because
they are ineffective at catching fish, are difficult to work with, take
more time to remove, and may cause more injury to leatherback turtles
than ``J''-hooks when they are removed. Finally, one commenter
applauded the move away from ``J''-hooks towards circle hooks and
requested that the Agency act as quickly as possible.
Response: Requiring the use of circle hooks and removing ``J''-
hooks throughout the PLL fishery is an important step that will have
significant conservation benefits for sea turtles. Several studies
described above, including three years of research in the NED, have
documented the effectiveness of circle hooks at reducing

[[Page 40740]]

bycatch and/or bycatch mortality of sea turtles. In addition, in the
GOM, PLL fishermen deployed an appreciable amount of circle hooks for
several years, and observer data from that area show that estimated
leatherback and loggerhead turtle interactions were generally lower
when circle hooks (16/0) were most frequently used (1992, 1998, and
1999), and generally higher when circle hooks (16/0) were least
frequently used (1996, 1997, 2000, 2001, and 2002).
The NED experiment conducted 29 sets during 2003 to compare offset
16/0 circle hooks with 18/0 offset circle hooks. Although the results
indicated higher interactions with the 16/0 offset hooks than with the
18/0 offset hooks, the Agency anticipates that allowing 16/0 hooks
without any offset outside the NED will significantly reduce turtle
mortalities, and could result in fewer turtle interactions involving
foul hooking. The NED experiment additionally demonstrated that catches
of target species can be increased or, at least, remain constant using
circle hooks.
As with any new gear, there probably will be period of time during
which fishing crews adjust to circle hooks. However, these hooks are
not expected to be prohibitively difficult to work with, as some
vessels already use them. The final rule additionally requires that
pelagic longline vessels possess and use several pieces of sea turtle
release gear, and adhere to careful handling and release protocols.
When properly used, these gears will facilitate hook removal and reduce
sea turtle injuries occurring as a result of interactions. Fishing
crews should familiarize themselves with the proper use of the release
gear and the careful release protocols, because the final rule requires
the removal of as much fishing gear as possible without causing further
injury to a sea turtle prior to its release.
Comment 10: A large proportion of comments were opposed to the use
of 18/0 circle hooks outside the NED, primarily because they are too
large to catch some target species, including small YFT, albacore tuna,
dolphin, wahoo and other pelagics. For this reason, the commenters
stated that requiring 18/0 circle hooks outside the NED would reduce
catches and create substantial adverse economic impacts. Many of these
comments were supportive of a requirement to use 16/0 circle hooks, as
contained in non-preferred alternative A5 of the DSEIS. Some cited
studies conducted in the Azores (Bolten et al., 2002) and observer data
in the GOM as evidence that a 16/0 hook would be effective at reducing
turtle mortalities. Others stated that a 16/0 hook would pose less risk
than an 18/0 hook at foul-hooking leatherback turtles, the species most
commonly interacted with in the GOM, because of the smaller gap between
the barb and the shank.
Response: As described in the responses to comments 1-5, the final
management measures have been modified to allow the use of 16/0 or
larger non-offset circle hooks outside the NED.
Comment 11: Many commented that requiring the use of only either
flat or offset circle hooks, depending upon whether squid or mackerel
bait is used, would not provide flexibility to adapt to changing
conditions on longer PLL trips, thus both types of hooks should be
allowed. One commenter stated that maintaining the sharpness of a flat
(non-offset) circle hook is more difficult than with offset hooks and
could potentially reduce catches if flat hooks (with squid) are used.
To the contrary, others stated that offsetting a circle hook greatly
reduces its design advantages and that the use of large mackerel bait
may have confounded the results obtained with the offset 18/0 circle
hook in the NED experiment. These commenters stated that, until a
robust experimental design is established to test the impact on
loggerheads of the 18/0 non-offset circle hook vs. the 18/0 offset
circle hook, the final regulations should only allow for the use of 18/
0 non-offset circle hooks.
Response: The NED research experiment concluded that there is no
significant difference in model-based reduction rates due to non-offset
18/0 circle hooks with squid baits and offset 18/0 circle hooks with
squid baits for loggerhead and leatherback sea turtles. Therefore, the
final regulations allow vessels to fish within the NED, provided they
comply with certain hook and bait requirements. Vessels are limited, at
all times, to possessing and/or using only 18/0 or larger circle hooks
with an offset not to exceed 10 degrees, and Atlantic mackerel and/or
squid bait. Vessels fishing outside the NED are limited, at all times,
to possessing and/or using 18/0 or larger circle hooks with an offset
not to exceed 10 degrees, and/or 16/0 non-offset (i.e., flat) circle
hooks. The requirement that 16/0 circle hooks be non-offset is a
precautionary measure to reduce the likelihood that the smaller hooks
will get swallowed or lodged in a turtle's throat or esophagus, or
result in foul-hooking.
Comment 12: Commenters requested that the requirement to use
corrodible hooks in the PLL fishery be removed, because there is no
scientific or biological rationale to justify their use.
Response: The requirement to use corrodible hooks and crimps was
implemented as part of the Reasonable and Prudent Alternative (RPA) in
the June 14, 2001, BiOp (2001 BiOp). It is intended to improve the
survival of sea turtles that are hooked when external hooks cannot be
removed, or when hooks are deeply embedded and no attempt to remove the
hook can be made. The Agency intends to collect and analyze additional
information on hook removal rates resulting from implementation of this
final rule and, depending upon those rates, will consider removal of
the requirement to use corrodible hooks in a future rulemaking.
4. Sea Turtle Release Gear and Careful Handling Protocols
Comment 13: Most of the comments received concerning the
requirements to possess sea turtle release gear and to adhere to
careful handling protocols (alternative A16) were supportive of the
proposed measures. Several commenters suggested either voluntary or
mandatory training (in-person, online, or via other media such as CD,
DVD, or videotape) for captains and/or crew members to improve the
effectiveness of the gear and compliance with the protocols. Another
suggestion was that the Agency provide either a certificate of
completion or attendance and that a person or persons possessing the
certificate be required onboard all PLL vessels.
Response: The requirements to possess and use sea turtle release
gear and to adhere to careful handling protocols are important
components of this final rule. Under this rule, an Agency-approved
document describing sea turtle careful release protocols is required to
be onboard each PLL vessel. Fishing captains and crew members should
familiarize themselves with the proper use of release gear and the
protocols, as the final rule requires removal of as much gear as
possible without causing further injury to a sea turtle prior to its
release. Consistent with the 2004 BiOp, the Agency has established a
POC to, among other things, answer questions that fishermen may have
regarding the release gear and handling protocols. POC information is
provided in this final rule, and also on the HMS website at http://www.nmfs.noaa.gov/sfa/hms.
In addition, an educational video mpeg file

entitled ``Removing Fishing Gear from Longline Caught Sea Turtles'' is
currently available at: http://www.sefsc.noaa.gov/seaturtlefisheriesobservers.jsp
, and will be distributed to PLL vessels

during the

[[Page 40741]]

summer of 2004. This video mpeg demonstrates the proper use of the
required and recommended release turtle gear in the rule. The Agency
will conduct additional education and outreach efforts and pursue
mandatory training and certification for the fishery. Workshops or
other training programs are already under consideration in the
development of Amendment 2 to the HMS FMP.
Comment 14: Several commenters stated that the ``turtle tether''
should be required onboard all PLL vessels in the final regulations,
rather than only recommended in the protocols.
Response: Further refinements in the design standards and
procedural protocols for use of the ``turtle tether'' are still being
developed. After further development and testing, the Agency may
reconsider requiring the turtle tether in a future rulemaking.
Comment 15: Commenters stated that the proposed regulations only
generally address the removal of hooks from sea turtles, and do not
specify how to bring turtles onboard, how to restrain them, and how to
release them.
Response: Because of the many contingencies that may arise when a
turtle is encountered, the final rule does not attempt to address every
possible contingency. Rather, the rule specifies certain important
requirements, such as removing as much gear as possible and releasing
the turtle without causing further injury, and refers to the required
``Careful Release Protocols'' document for additional guidance and
requirements. As noted in the response to Comment 13, the Agency will
conduct outreach, training, and other educational efforts to
demonstrate the safe handling and careful release of turtles.
Comment 16: Some commenters wrote that the proposed requirements to
possess and utilize sea turtle handling and release gears (alternative
A16) were not reasonable, because the gear is difficult to obtain and
costly.
Response: Sea turtle handling and release equipment will impose
initial compliance costs estimated to range from $485.00 - $1056.50,
depending upon whether the equipment is fabricated from available
materials or purchased from suppliers. The design standards for line
clippers have changed only slightly, and one model that meets the
existing standards also meets the new design standards. The design
standards for dipnets have similarly only been slightly modified, by
specifying the length and carrying capacity of the handle. Other
required equipment, including bolt cutters, monofilament cutters, boat
gaffes, and needle-nosed pliers are relatively inexpensive and
available at most hardware or boating supply stores. Dehookers are also
available from commercial suppliers. A standard automobile tire to hold
boated turtles should not be difficult to obtain. Finally, a variety of
mouth openers/gags have been approved, specifically to reduce costs.
For example, the two required mouth openers/gags could consist of a
block of hard wood and two pieces of rope covered with hose, provided
they meet the design specifications in the final rule. Some of the
release equipment can be fabricated from readily available materials in
order to reduce costs. The Agency acknowledges that the requirements to
possess and use this equipment according to the ``Careful Release
Protocols'' document impose both financial and logistical burdens on
the public; however they are essential for the PLL fleet to reduce sea
turtle mortalities.
5. Environmental Impacts and Analyses
Comment 17: Several commenters requested that the Agency prohibit
pelagic longlines (alternative A11), implement large ``no-fishing''
areas for pelagic longlines (alternatives A12, A13, A14, & A15),
prohibit swordfishing in the Atlantic basin, or allow only rod and reel
or handline fishing for HMS, to provide greater protection for sea
turtles and other marine life.
Response: Prohibition of PLL gear was considered but not further
analyzed, or selected, because other effective sea turtle bycatch and
bycatch mortality reduction alternatives are available. See response to
Comment 4 regarding possible, future consideration of closures. In
addition, prohibition of PLL fishing is not needed to rebuild the
Atlantic swordfish stock. Overfishing is not occurring, and the stock
is in recovery with biomass at the beginning of 2002 estimated to be at
94 percent (range: 75 to 124 percent) of the biomass needed to produce
maximum sustainable yield (MSY). This estimate is up from an estimate
of 65 percent of MSY, as provided in the 1998 assessment. The 2001
fishing mortality rate was estimated to be 0.75 times the fishing
mortality rate at MSY (range: 0.54 to 1.086) (SCRS, 2002).
It is important to emphasize that unilateral efforts by the U.S. to
protect sea turtles and HMS in the Atlantic Ocean would likely be
insufficient to rebuild populations of these species, because the U.S.
fleet constitutes only a small part of the international fleet that
competes on the high seas for catches of swordfish and tunas. In fact,
U.S. PLL landings account for approximately 5.4 percent of total
Atlantic landings of HMS (SCRS, 2003). Therefore, the successful
adoption and timely implementation of circle hook and release gear
technology by the U.S. PLL fleet is of paramount importance. U.S.
industry support in demonstrating the success of these technologies,
both in reducing turtle mortalities and in maintaining catches of
target species, will be vital in future efforts to convince other
foreign fishing nations to implement similar management measures.
Comment 18: Several commenters stated that the ``exportability'' of
circle hook and release gear technology is the most important aspect of
this rule, because U.S. PLL turtle bycatch is relatively small compared
to that of foreign vessels Atlantic-wide. If the proposed one hook-
type/one bait requirements cause U.S. business foreclosures or economic
losses, the technology would likely not be ``exportable'' to foreign
nations. The unintended consequence of the proposed regulations could
be increased sea turtle interactions as foreign PLL vessels, which
currently account for the largest percentage of sea turtle
interactions, increase fishing effort. Similarly, if some U.S. PLL
vessels go out of business or reflag to foreign nations, the U.S. could
lose part of its ICCAT swordfish quota to foreign nations that do not
have such protective requirements, and sea turtle interactions by
foreign PLL vessels could increase. Therefore, these commenters stated
that it is imperative to implement a final rule that does not result in
business closures and is transferable to other ICCAT nations. Some
commenters suggested that non-preferred alternative A5 in the DSEIS
(16/0 circle hook with an offset not to exceed 10 degrees, outside the
NED) would provide an acceptable compromise for both domestic and
foreign vessels.
Response: As discussed above, international cooperation is critical
to reduce overall Atlantic sea turtle interactions and mortalities. For
this reason, the Agency committed substantial financial resources and
scientific expertise to the NED research experiment to develop cost-
effective technologies to reduce sea turtle interactions and
mortalities, without negatively impacting catches of target species.
The U.S. already has shared the experimental results at ICCAT and in
other international fora to promote and encourage sea turtle bycatch
reduction measures in international fisheries. In response to public
comment, the Agency re-examined the preferred

[[Page 40742]]

alternatives and modified the final management measures to provide
flexibility regarding the use of offset and non-offset hooks, bait
requirements, and hook sizes outside the NED. These modifications are
expected to reduce turtle interactions and mortalities significantly,
and demonstrate to foreign nations that adoption of circle hook
technologies is feasible and will have positive benefits for both sea
turtles and the PLL fishery.
Comment 19: Several commenters stated that the PLL fishery is only
one of many factors affecting the continued existence of sea turtles.
Other factors include: chemical water pollution; habitat loss; poaching
of nesting sites; artificial beach lighting; shrimp trawling; predation
by pets; driving on beaches; beach sweeping activities; outboard motor
emissions, and speeding motor boats. Commenters noted that these other
factors receive little regulatory attention, yet the PLL fishery is
being required to comply with perceived unnecessarily strict proposed
regulations. One commenter suggested that turtle hatcheries should be
used to augment turtle populations.
Response: NMFS and the U.S. Fish and Wildlife Service (USFWS) share
responsibility for threatened and endangered sea turtles under a
Memorandum of Understanding implementing the ESA. In general, marine-
related activities, such as fishing, are within the purview of NMFS,
whereas terrestrial activities are within the purview of the USFWS. The
ESA requires that federal agencies ensure that the actions that they
authorize, fund or carry out do not jeopardize the continued existence
of listed species. If there is no federal agency nexus to a proposed
action, the action is not subject to section 7 consultation and the
production of biological opinions under the ESA. Thus, this final rule
focuses upon the protection of adult and sub-adult turtle populations
in the marine environment that are affected by fishing activities
authorized by this Agency. Other provisions of the ESA, or other laws,
may be applicable to other actions that pose threats to sea turtles.
For example, recovery plans for leatherback and loggerhead sea turtles
have been in place for several years. Many of the activities mentioned
by the commenters are addressed within these recovery plans, including
marine pollution, habitat protection, beach lighting, beach
nourishment, protection of nesting sites, egg poaching, beach driving,
and beach sweeping. The management measures contained in this final
rule are expected to reduce significantly mortality attributable to
pelagic longlines, both domestically and, through export of circle hook
technologies, internationally.
Comment 20: One commenter raised concerns that the sea turtle
incidental take statement (ITS) was exceeded, even with the NED closed.
Response: Recent increases in sea turtle interactions occurred
mainly in the GOM and other areas outside the NED. This final rule
would prohibit ``J''-hooks and require gear modifications and the use
of release gear throughout the entire fishery, and is expected to have
significant conservation benefits for sea turtles. Because of the
termination of the NED experiment, this rulemaking, and the exceedance
of the ITS from the 2001 BiOp, the Agency reinitiated consultation on
the fishery. The new consultation, finalized in the 2004 BiOp, analyzed
the circumstances and potential causes of the exceedance, as well as
the expected impacts of the fishery on sea turtle populations, and is
incorporated into this final rule.
Comment 21: A commenter stated that the number of boats fishing in
the NED could increase beyond the 12 vessels that were analyzed in the
DSEIS, because of a recent bilateral agreement that would allow U.S.
vessels to land their catch in Canada.
Response: Data over the last six years indicate that less than 12
vessels, on average, have fished in the NED. The Agency will continue
to monitor changes in the fishery and, if a significant increase in the
number of vessels occurs in the NED, will take other action as needed.
Moreover, sea turtle interactions have been documented throughout the
PLL fishery. As overall effort in the PLL fishery is restricted by
limited access permits, any additional fishing effort in the NED would
necessarily result in less fishing effort elsewhere. Furthermore,
vessels fishing in the NED will be required to use larger circle hooks
than vessels fishing outside the NED.
6. Social/Economic Impacts and Analyses
Comment 22: Many commenters stated that there would be potentially
reduced revenues from the preferred alternatives due to: (1) the lack
of flexibility for fishermen to select various hook and bait
combinations; (2) potentially reduced catches of target species, both
inside and outside the NED, due to the proposed 18/0 circle hooks; and,
(3) potentially reduced catches outside the NED due to the proposed
``exotic'' baits (i.e., squid or Atlantic mackerel only). Several
commenters stated that more concern should be focused on the potential
loss of jobs and social costs. Regarding the economic analyses in the
DSEIS/RIR/IRFA, two commenters stated that the ex-vessel prices
presented in the analyses were not up to date. Another commenter stated
that the analyses overstate potential increases in target catches and
understates potential losses in target catches. Commenters also
requested that the following additional factors be considered: (1)
overhead costs will increase because of the need to buy new hooks and
more expensive, non-indigenous baits outside the NED; (2) there would
be irretrievable lost costs because existing inventories of fishing
hooks would become obsolete; and, (3) U.S. PLL fishermen could be put
at a competitive disadvantage to foreign vessels because of potentially
increased costs and decreased revenues.
Response: As explained in the responses to Comments 1-12, the
Agency has modified the final rule, in response to public comment, to
provide more flexibility regarding baits, offset and non-offset circle
hooks, and minimum hook sizes outside the NED. However, pursuant to the
2004 BiOp, additional rulemaking may be necessary to consider a new
time and area closure(s), which could have adverse economic impacts.
The economic impacts of such a closure, if necessary, would be analyzed
and addressed in that rulemaking.
In response to the comment that the IRFA used outdated ex-vessel
price information, the Agency has updated the RIR and FRFA using actual
2002 ex-vessel prices. The IRFA utilized 2001 ex-vessel prices adjusted
to 2002 dollars, using the Consumer Price Index on-line adjustment
calculator. The result of this adjustment is that the 2002 annual gross
vessel revenue estimate used in the economic analyses has been lowered
from $187,074 to $178,619, due to generally lower ex-vessel prices
received in 2002.
With regard to estimated potential losses or gains in target
species catches and ex-vessel revenue, the estimated changes in catches
were derived directly from the results of the NED research experiment
and then multiplied by ex-vessel prices to estimate changes in ex-
vessel revenue. The DSEIS/RIR/IRFA and final documents each provide a
range of impacts to illustrate the variability associated with the
different hook and bait combinations and their effects on catches of
target species. A range of economic impacts is necessary because the
final regulations provide flexibility in the choice of different hook
and bait combinations. The ranges of impacts associated with each
alternative

[[Page 40743]]

in the FSEIS have changed somewhat from the ranges that were provided
in the DSEIS. This is because, since publication of the DSEIS, the
reduction rates associated with experimental treatments (hook and bait
combinations) have been standardized to control for several variables,
including sea surface temperature, daylight soak time, total soak time,
vessel effect, and pairing effect in case of matched-paired hook types
per set. Also, as described above, the estimate of annual gross vessel
revenue changed.
This action would result in initial compliance costs associated
with the purchase of new hooks (between $675.25 - $1,650.00 for 2,500
18/0 hooks, and $697.50 - $1,241.75 for 2,500 16/0 hooks). However,
after initial hook purchase, replacement costs for circle hooks are
expected to be comparable to, or less than, the replacement costs for
``J''-hooks. The DSEIS originally estimated annual hook costs at
approximately $20,176 per vessel for a years supply. However, this
estimate has been removed from the FSEIS because not every hook is
expected to be lost on every set. NMFS acknowledges that there may be
irretrievable lost costs due to existing inventories of ``J''-hooks
becoming obsolete. However, a 30-day delay in the effective date of the
final measures outside the NED may help vessel owners retrieve some of
the costs associated with the prior purchase of ``J''-hooks by
providing time to use them. The compliance costs for the purchase of
release equipment are estimated to range from $485.00 to $1056.50. As
discussed in the response to Comment 16, some of the release equipment
can be fabricated from readily available materials in order to reduce
costs.
While there are short term costs associated with the final rule,
this action is not expected to place U.S. PLL vessels at a competitive
disadvantage relative to foreign vessels. If fishermen choose an
appropriate combination of circle hooks and bait, the NED research has
shown that catches of target species can be increased or, at least,
remain constant by using circle hooks.
Comment 23: Several commenters stressed that it is important for
NMFS to reopen the NED to PLL fishing (as contained in alternatives A6,
A7, A8, A9, and preferred alternative A10 of the DSEIS), because
several vessels are very dependent upon income derived from fishing in
that area.
Response: This final rule will allow PLL vessels to fish in the NED
closed area, provided that they comply with specified hook, bait, and
release gear requirements that were proven to be effective at reducing
sea turtle interactions and mortalities during the three-year NED
research experiment.
Comment 24: One commenter stated that the Community Profiles
section of the DSEIS relies upon old data. For example, an annual
Blessing of the Fleet no longer occurs in one fishing community.
Response:The Community Profiles sections of the DSEIS and FSEIS
(Chapter 9) draw upon a variety of sources, including census data,
logbook data, local Chamber of Commerce information, academic studies,
and professional observations. Information contained in the DSEIS and
FSEIS constitute the best available information at this time.
Comment 25: A commenter stated that the cost-earning analyses are
outdated and should be corrected so that the Agency can properly
evaluate the economic impacts of its regulations.
Response: The economic analyses in the DSEIS and FSEIS use the best
available information. The Agency strives to improve its information
collection, and in 2003, initiated mandatory cost-earnings reporting
for selected vessels, specifically to improve the economic data
available for all HMS fisheries. However, this new economic information
was not available at the time of preparation of the DSEIS or FSEIS,
because the data are still being collated and checked for accuracy.
Additional economic data, including cost and earnings information, will
continue to be collected from vessels to further evaluate the impacts
of this final rule.
7. Additional Comments Regarding the Alternatives and Other Management
Measures
Comment 26: Several commenters expressed support for the proposed
regulations (preferred alternatives A3, A10, and A16 in the DSEIS),
stating that they would be effective at reducing sea turtle bycatch and
post-hooking mortality. One commenter stated that the measures provide
the most environmentally advantageous and socially just approach to
lessening impacts on sea turtles while safeguarding human interests.
The proposed regulations are based upon three years of meticulous
research and should provide a commonsense and practical model for both
domestic and foreign PLL fleets.
Response: As discussed above, the proposed measures have been
modified after considering public comment, the NED experiment, and
other available information. The final rule is expected to have
significant ecological benefits while mitigating for potentially
adverse economic impacts. Successful implementation of this rule will
provide a catalyst for promoting the adoption of similar measures by
foreign fishing nations.
Comment 27: Many commenters opposed the continued use of
traditional ``J''-hooks (contained in alternatives A1, A4, and A9 of
the DSEIS), because they do not reduce the bycatch and bycatch
mortality of sea turtles.
Response: Under this final rule, ``J''-hooks will no longer be
allowed in the U.S. Atlantic PLL fishery.
Comment 28: Several commenters indicated that other, more general,
fishery-related factors should have been examined in the DSEIS, such as
further efforts to eliminate overfishing of swordfish and tunas and an
overall reduction in the number of PLL permits.
Response: The purpose of this rulemaking is to reduce interactions
with, and post-release mortality of, threatened and endangered sea
turtles in the PLL fishery. Addressing overfishing of HMS and the
permitting of PLL vessels is beyond the scope of this action; however,
these issues are being addressed in other actions. Management and
conservation of Atlantic HMS requires international cooperation. The
U.S. participates in negotiations at the International Commission for
the Conservation of Atlantic Tunas (ICCAT) to develop recommendations
on quota allocations and other measures. As part of the international
rebuilding efforts, the U.S. implements ICCAT-adopted recommendations.
The Agency has issued a proposed rule to implement an ICCAT swordfish
quota recommendation (68 Fed. Reg. 36967 (June 30, 2003)), and in
Amendment 2 to the HMS FMP, currently in development, will examine
additional HMS management measures, including permitting issues.
Comment 29: Several commenters suggested that other alternatives
should have been considered in the DSEIS including: (1) allowing
nighttime longline sets only; (2) using water temperature guidelines to
restrict PLL fishing activity; (3) implementing 100-percent observer
coverage and a hard cap on turtle takes, whereby the PLL fishery would
be closed if the turtle cap is reached; (4) ``real time'' observer
reporting to monitor for ITS exceedances; and (5) implementing effort
controls in the NED on numbers of vessels, trips, sets, or hooks. One
commenter stated that effort controls are needed because of the
possibility of increased effort in the NED resulting from a recent
agreement that would

[[Page 40744]]

allow U.S. vessels to land fish in Canada.
Response: Several alternatives mentioned in this comment, including
100 percent observer coverage, a hard cap on turtle takes, and limits
on numbers of sets, were recently implemented in the shallow-set
component of the Hawaii-based longline fishery. There are notable
differences between the Hawaii-based and Atlantic PLL fisheries. For
example, the Hawaii-based shallow-set fishery is predominantly a
swordfish fishery. In the Atlantic Ocean, however, swordfish and tuna
PLL fishing is generally managed as a single fishery, with the
exception of quotas, size limits, retention limits, and other species-
specific measures, because the Atlantic PLL fleet is mobile and may
target a variety of species on the same trip. Because sea turtles are
regularly captured on both swordfish sets and tuna sets in the Atlantic
Ocean and GOM, management measures are necessary for the PLL fishery as
a whole, regardless of target species. Another difference is that the
Atlantic fishery is managed under certain species and country-specific
ICCAT quotas, whereas the Hawaii fishery is not.
An alternative prohibiting daytime sets was not considered because
the NED research experiment and the Azores study ((Bolten et al., 2002)
both found that loggerheads are becoming hooked mainly during daylight,
and the NED experiment found that leatherbacks become hooked during the
night. A prohibition on either daylight or nightime sets would not be
effective at protecting both of these species. Therefore, this
alternative was not included in the DSEIS, especially when other
measures (i.e., circle hooks) are available.
For enforcement, operational, administrative, and other reasons,
the other suggested alternatives were not included in the DSEIS.
Although turtle catch rates can be influenced by water temperature, it
would be extremely difficult to enforce regulations restricting vessels
to fishing within certain specified temperatures. In addition, a ``real
time'' hard cap on the number of turtle takes is not practicable
without 100 percent observer coverage. At this time, it would be
operationally difficult, and expensive, to implement 100 percent
observer coverage for the 148 active PLL vessels fishing in the
Atlantic Ocean and GOM, because this is a large geographical area with
several remote ports. In 2002, observer coverage averaged 8.9 percent
(NED - 100 percent, non-NED - 3.7 percent), and coverage has averaged
3.6 percent for the years 1995 - 2001. The Agency is continuing to
explore options in Amendment 2 to the HMS and Billfish FMPs to enhance
existing observer coverage, including industry funding, increased
permit fees, and quota set-asides. The Agency also will endeavor to
improve its monitoring in other ways. The VMS requirement for all PLL
vessels, implemented in September 2003, may provide the ability to
gather more timely information about apparent effort. In addition, the
Agency will take steps to enhance its monitoring of turtle
interactions.
Fishing effort controls are not being implemented in the NED, at
this time, because sea turtle interactions occur throughout the
Atlantic basin. The final regulations requiring circle hooks and
release equipment throughout the fishery are anticipated to have
significant turtle conservation benefits. As discussed in the response
to Comment 4, the Agency also will engage in outreach, education, and
training activities and take further action, as necessary, to conserve
and protect sea turtles.
Comment 30: A commenter indicated that there was no alternative in
the DSEIS that would keep the NED closed and require circle hooks, bait
requirements, and release equipment in the remainder of the fishery.
Response: The DSEIS and FSEIS include alternatives that would
impose hook and bait and release gear requirements on the Atlantic
pelagic longline fishery and keep the NED closed. Specifically, in
Section 4.0 of the FSEIS, the analyses for alternatives A2 - A5(b)
indicate the ecological, economic, and social impacts of requiring
circle hook and bait requirements for the fishery, excluding the NED.
Comment 31: A commenter suggested that a small number of ``J''-
hooks (less than 30) should be allowed to accommodate a handline
fishery by PLL vessels when fish are schooling.
Response: The final regulations do not allow any ``J''-hooks to be
possessed and/or used onboard HMS PLL vessels. To allow any ``J''-hooks
would compromise the enforceability and effectiveness of this rule. The
final regulations have been modified to provide more flexibility with
regards to allowable circle hook and bait combinations, and circle hook
sizes outside the NED. The required use of circle hooks throughout the
PLL fishery is a significant and important step that will have
significant conservation benefits for sea turtles.
Comment 32: One commenter stated that the Agency had indicated that
the goal of the rulemaking is to reduce interactions below the ITS, yet
the June 14, 2001, BiOp stated that the objective is to reduce
mortalities of sea turtles. Because there were no dead sea turtles in
the NED experiment, alternative A5 in the DSEIS (16/0 hooks outside the
NED) should be adopted because it would be effective at reducing
mortalities.
Response: Because of the recently concluded NED experiment and the
exceedance of the ITS in the 2001 BiOp, the Agency reinitiated
consultation and began developing a proposed rule using the ITS as an
initial guide in developing its alternatives. Management actions should
first try to eliminate or reduce the likelihood of interactions between
the fishery and sea turtles. For interactions that cannot be avoided,
management actions should reduce the likelihood of sea turtles being
injured or killed during, or as a result of, the interaction. These
reductions must be made so that the fishery is not jeopardizing the
continued existence of listed species. The mandatory possession and use
of circle hooks and careful release gear, along with training and
certification programs are expected to accomplish these objectives in
the long-term, while the adaptive management strategies outlined in the
RPA in the 2004 BiOp are expected to help ensure that these objectives
are met in the short-term. As noted above, the final rule has been
modified to allow the use of 16/0 or larger, non-offset circle hooks
outside the NED.
8. Bycatch Issues
Comment 33: Many commenters recommended circle hooks, bait
restrictions, release gear requirements, and other similar or
equivalent management measures for recreational fisheries to reduce
bycatch.
Response: The bycatch of fishery resources, marine mammals, sea
turtles, sea birds and other living marine resources has become a
central concern of the commercial and recreational fishing industries,
resource managers, conservation organizations, scientists and the
public, both nationally and globally. Accordingly, the Agency recently
announced a National Bycatch Strategy to reduce bycatch through fishing
gear improvements, standardized reporting, education and outreach. As
part of that strategy, the HMS Management Division has identified the
improvement of recreational fishery data and angler education as items
to be considered in Amendment 2 to the HMS and Billfish FMPs. In
addition, the Agency has established an angler outreach program

[[Page 40745]]

to promote the use of circle hooks in the recreational fishery.
Comment 34: Several commenters stated that requiring an 18/0 circle
hook with squid and/or mackerel could increase the bycatch of other
non-target species, including billfish, bluefin tuna and large coastal
sharks. There was also a concern that levels of bycatch in the PLL
fishery, including seabirds and marine mammals, are too high regardless
of hook and bait treatments, and that these interactions should be
further considered before implementing final regulations.
Response: As described above, the Agency recently announced a
National Bycatch Strategy to further reduce bycatch through fishing
gear improvements, standardized reporting, education and outreach.
Other initiatives underway include the U.S. Plan of Action for Reducing
the Incidental Catch of Sea Birds in Longline Fisheries, which was
jointly developed by this agency, the U.S. Fish and Wildlife Service,
and the Department of State. The plan involves conducting an assessment
of longline fisheries to determine if a seabird bycatch problem exists,
and implementing measures to reduce impacts on seabirds to the maximum
extent practicable. Because interactions with seabirds appear to be
relatively low in Atlantic HMS longline fisheries, measures have not
been implemented. This Agency will continue to monitor bycatch in the
PLL fishery to determine if any of the measures contained in this final
rule contribute to increased levels of bycatch of billfish, bluefin
tuna, large coastal sharks, seabirds, or marine mammals.
9. Technical and Implementation Issues
Comment 35: Some commenters recommended redefining circle hooks by
specifying the allowable gap between the hook point and the hook shank,
providing a minimum length, specifying that the hook should be
generally circular in shape, and not including a reference to the gauge
of the wire (e.g., 16/0 or 18/0) used in the hook.
Response: The final rule has been clarified to specify the
allowable gap between the hook point and the shank and a minimum
length, and to specify that the required hooks should be generally
circular or oval-shaped from point to shank. A gauge specification is
being retained in the final regulations because the NED research
experiment tested hooks of different gauges, and because fishing hooks
are typically referred to by their gauge size. However, in recognition
that there may be some variability, the final rule provides
clarification of overall size dimensions, and the preamble of the final
rule identifies circle hooks by manufacturer and model number that are
known to meet the dimensions.
Comment 36: Numerous fishermen commented that they would not be
able to obtain an adequate supply of the proposed circle hooks in a
timely manner.
Response: The Agency considered delaying the effective date of the
final regulations beyond 30 days, for vessels fishing outside the NED.
However, due to the urgent need to reduce turtle interactions, an
additional delay is not possible. An adequate supply of circle hooks
for at least a few trips is expected to be available by the effective
date of this rule. Hook manufacturers have recently increased
production of circle hooks in response to the recent implementation of
a similar rule in Hawaii.
10. Protected Resources Issues
Comment 37: Commenters stated that the June 14, 2001, BiOp and its
associated incidental take statement (ITS) are not based upon the best
available science. One commenter stated that the BiOp should be based
upon the population status of southern loggerhead turtles, rather than
the northern population which the Agency is trying to protect. Also,
the 2001 BiOp incorrectly states that 100 percent of sea turtle
interactions in the NED are with the northern nesting population.
Recent DNA testing shows that over 80 percent of NED loggerhead
interactions were with turtles originating from the southern nesting
population, which is increasing at 4 percent a year. In addition,
loggerhead sea turtle population data should not be used to develop the
leatherback sea turtle ITS. Some commenters stated there is no modeling
of loggerhead and leatherback sea turtle populations, so the population
estimates are uncertain.
Response: As reflected in comments 37-40, the Agency received
public comments directed at the 2004 BiOp. The Agency is not required
to provide for, or respond to, public comments while developing a BiOp.
However, to the extent that these comments relate to the analyses
required under the National Environmental Policy Act (NEPA), responses
are provided below.
The June 1, 2004, BiOp and associated ITS supercede the previous
opinion and analyze pertinent information related to this rulemaking.
The information in the 2004 BiOp represents the latest, best available
science, and has undergone numerous levels of review. The opinion
analyzes potential impacts on the loggerhead species as a whole, with
attention paid to the impacts on the individual subpopulations, each of
which are important to the survival and recovery of the species and
require protections in order to ensure the species' future. Based upon
data from the NED research experiment, and the fact the fishery is
widespread throughout the pelagic waters of the Atlantic and GOM, it is
assumed that the overall interaction of loggerhead sea turtles with the
pelagic longline fishery is in proportion with the overall stock sizes
of each nesting aggregation. That is, the fishery is not believed to be
affecting any stock disproportionately, which was a factor considered
when the threat of any individual stock being extirpated was examined.
In addition, the latest nesting trend data for the South Florida
nesting assemblage indicate that there is no discernible trend in the
population. The uncertainty of population estimates and trends are
acknowledged and taken into account.
Comment 38: Several commenters stated that post-hooking mortality
estimates of sea turtles were overestimated in the ITS, and should be
revised based upon more recent data from a mortality workshop that the
Agency held. Other commenters stated that the use of Spanish research
studies to develop post-hooking mortality estimates in the BiOp is not
appropriate. The current estimates of post-hooking mortality are based
upon the use of ``J''-hooks, which are more likely to cause gut-hooking
than circle hooks. Circle hooks will better ensure that hooked and
entangled sea turtles survive. These factors should be considered in
the new BiOp.
Response: The 2004 BiOp uses refined post-interaction mortality
estimates from the January 2004, Workshop on Marine Turtle Longline
Post-Interaction Mortality. These estimates take into consideration
hooking locations, which are largely a function of the hook type. The
Spanish mortality studies were only one of many data sources considered
by the participants of the workshop, and any potential limitations of
those studies were understood and taken into account.
Comment 39: Commenters stated that sea turtle interactions are
increasing because their populations are increasing. Therefore, the
BiOp and proposed regulations should consider this as baseline
information.
Response: The baseline information analyzed in this rulemaking and
the 2004 BiOp includes the latest sea turtle population and trends
data.
Comment 40: Commenters questioned how the PLL fleet could be found
to be

[[Page 40746]]

jeopardizing the continued existence of leatherback and loggerhead sea
turtles when the fleet accounts for hundreds of interactions, while the
shrimp fleet accounts for over 100,000 turtle interactions.
Response: Fisheries may impact life stages of sea turtles in
different ways and have varying bycatch and bycatch mortality reduction
measures available depending on the gear used. This rulemaking focuses
on the impacts of the PLL fishery on protected sea turtles and expected
reductions in interactions and mortality from the preferred
alternatives. The Southeast shrimp trawl fishery underwent a separate
consultation which resulted in a December 2, 2002, biological opinion.
Although the shrimp fishery interacts with more sea turtles, the
December 2002 biological opinion determined that revised regulations on
Turtle Excluder Devices (68 FR 8456, February 21, 2003) would be
expected to reduce related mortality significantly in that fishery. See
the December 2002 BiOp for specifics of the shrimp trawl consultation.
The June 1, 2004, BiOp prepared for this rulemaking found jeopardy for
leatherbacks only, as a result of the expected levels of mortality. The
RPA in the June 2004 BiOp is expected to reduce mortality to levels
which will not jeopardize the continued existence of the species.
11. Other Comments
Comment 41: Commenters stated that the proposed regulations violate
National Standard 4 of the M-S Act, because they discriminate between
residents of different states, especially North Carolina, where there
are few sea turtle interactions off the coast and residents catch
smaller fish.
Response: The proposed and final management measures consist of
conservation measures that are intended to protect threatened and
endangered sea turtles. These measures are consistent with National
Standard 4 because they apply bycatch reduction and mitigation
requirements throughout the whole PLL fishery, are not direct
allocations of fishing privileges, and do not discriminate between
residents of different states. Circle hooks are necessary for U.S. PLL
vessels for the entire Atlantic basin because turtle interactions can,
and do, occur over this entire area, albeit at different rates. The PLL
fleet is generally mobile, so vessels may opportunistically choose to
fish in areas where any potential adverse impacts are lower. Fishery
management actions often have inherently differential geographic
impacts, and these are largely due to differences in species
composition and abundance. In consideration of this, the Agency has
modified the final rule to account for some geographical variation in
the PLL fishery by implementing different management measures within
the NED closed area and in other areas.
Comment 42: One commenter stated that the Agency has not adequately
analyzed the cumulative effects of this action on PLL vessels, as
required by NEPA.
Response: The DSEIS and FSEIS have adequately analyzed the
cumulative effects of this action on PLL vessels. The analyses describe
all major management actions that have occurred since 1985 and the
potential effects of this action when added to other past, present or
reasonably foreseeable future actions.
Comment 43: Commenters stated that there was no scoping process as
required under NEPA and that the rulemaking was proceeding too quickly
with little consideration being given to public concerns. One commenter
requested consideration as an ``applicant'' in the development of the
BiOp. Other commenters requested more public involvement in the ESA
consultation, specifically, copies of the draft and final BiOp for the
proposed rule
Response: Although scoping hearings can be beneficial, they are not
required under NEPA. Because of the urgent need to implement sea turtle
bycatch mitigation measures, scoping hearings were not held. However,
the Agency has provided ample opportunity for public participation
throughout the rulemaking. The Agency published a Notice of Intent of
Proposed Rulemaking (NOI) in the Federal Register on November 28, 2003
(68 FR 66783), identifying significant issues related to the action and
requesting public comment through December 29, 2003. The Agency also
distributed a FAX notice on December 3, 2003, to solicit comment.
Taking public comment into consideration, the Agency published a
proposed rule in the Federal Register on February 11, 2004 (69 FR
6621), then held public hearings in North Dartmouth, MA (March 2,
2004), New Orleans, LA (March 4, 2004), and Manteo, NC (March 9, 2004).
Over 100 people attended these public hearings. The comment period on
the proposed rule closed on March 15, 2004, and the Agency received
approximately 175 written and electronic comment letters. With regard
to the ESA consultation, the Agency does not consider there to be an
applicant for this action. Moreover, the Agency is not required to
provide for public comment on a draft or final biological opinion.
Copies of the final, 2004 BiOp are available upon request from the NMFS
Southeast Regional Office, Division of Protected Resources (9721
Executive Center Drive North, St. Petersburg, FL 33702. 727-570-5312).
The BiOp may also be obtained online at: http://sero.nmfs.noaa.gov/.

Comment 44: One commenter stated that the impacts of the proposed
regulations on ``other important organizations,'' including trade
associations, have not been fully analyzed in the Community Profiles
section of the DSEIS.
Response: Chapters 4, 6, 7, 8, and 9 of the DSEIS and the FSEIS
identify affected entities and provided an assessment of the likely
economic impacts associated with each of the alternatives. The analysis
primarily focuses upon fishing vessels, as they would be most directly
impacted by the action. The analysis was very complete and indicated a
range of potential economic impacts on vessels, from negative to
positive, depending upon a variety of factors including target species
and hook and bait choices. In addition, potential impacts on dealers,
processors, bait houses, and gear manufacturers who might be indirectly
affected by the measures are identified. By providing information on
these direct and indirect impacts, with a focus on those most directly
impacted by the action, other entities, including trade associations,
should be able to reasonably assess the impacts in consideration of
their unique situations.
Comment 45: Commenters noted that the Atlantic Tunas Conservation
Act (ATCA) provides that the U.S. PLL fleet should have a reasonable
opportunity to catch its full ICCAT quota of swordfish; however, the
fleet is currently harvesting only 29 percent of its quota. The
proposed regulations would further prevent full utilization of the
quota.
Response: The final management measures are expected to provide the
U.S. PLL fleet with a reasonable opportunity to catch its ICCAT quota
allocation, consistent with the ATCA, Magnuson-Stevens Act, ESA, and
other domestic law. The NED experiment demonstrated that target species
catches can be increased, or at least remain constant, using circle
hooks if an appropriate combination of hooks and bait is deployed. The
DSEIS noted that the proposed measures are most likely to impact
adversely mixed target trips, and that impacts on catches in warmer
waters are not fully known. Public comment affirmed these potential
impacts, and in response, the final rule provides more flexibility in
hook and bait choices and hook sizes to minimize

[[Page 40747]]

adverse impacts, to the extent practicable.
Comment 46: A commenter stated that the Secretary of Commerce does
not have the jurisdictional authority to apply the Magnuson-Stevens Act
to HMS fisheries outside the U.S. exclusive economic zone (EEZ),
including the NED.
Response: The Secretary of Commerce does have the authority to
regulate U.S.-permitted vessels fishing outside the U.S. EEZ. The
Secretary's authority with regard to the NED was specifically addressed
and upheld in Blue Water Fishermen's Association, et al., v. National
Marine Fisheries Service, et. al., 226 F.Supp.2d 330 (D. Mass. 2002).

Changes From the Proposed Rule

NMFS has made several changes to the proposed rule. These changes
are outlined below.
(1) In Sec. 635.21(c)(5)(iii)(C), the hook size, type and bait
requirements have been modified. In the proposed rule, all pelagic
longline vessels were limited, at all times, to possessing on board
and/or using only either 18/0 or larger offset circle hooks with whole
Atlantic mackerel; or 18/0 or larger non-offset circle hooks with
squid. The final rule contains different regulations for vessels
fishing inside and outside of the NED. In the final rule, Sec.
635.21(c)(5)(iii)(C) limits pelagic longline vessels, fishing outside
of the NED closed area, at all times, to possessing on board and/or
using only 18/0 or larger circle hooks with an offset not to exceed 10
degrees, and/or 16/0 or larger non-offset circle hooks. Only whole
finfish and/or squid baits may be possessed and/or utilized with the
allowable hooks. Section 635.21(c)(2)(v) allows vessels with pelagic
longline gear on board to fish in the NED closed area under certain
requirements. Vessels are limited, at all times, to possessing onboard
and/or using only 18/0 or larger circle hooks with an offset not to
exceed 10 degrees. Only whole Atlantic mackerel and/or squid baits may
be possessed and/or utilized with the allowable hooks inside the NED
closed area. As indicated in the response to comments, the final rule
was modified to address regional differences in target species catches
and bait availability, and to provide additional flexibility for
vessels to switch hooks and baits to target different species at
different times during a trip.
(2) Consistent with the above changes for the hook and bait
requirements, the final rule also makes changes to Sec. Sec. 635.2 and
635.21(c)(2)(v). The proposed rule removed the definition for
``Northeast Distant closed area'' in Sec. 635.2, and removed the
prohibition on fishing in the NED closed area in Sec. 635.21(c)(2)(v).
The final rule retains the NED closed area definition and prohibition
on PLL fishing (except under certain conditions, described above), to
clarify that differing hook and bait requirements would apply in the
NED closed area and elsewhere in the fishery. Removing the NED
definition and its coordinates also would have affected other
regulations, not directly related to this rulemaking, that refer to the
NED closed area. Thus, this modification provides for consistency and
clarity throughout the HMS regulations.
(3) In Sec. 635.2, in response to public comment, the definition
of ``Circle hook'' has been clarified to specify that the barbed end of
the hook should, as originally designed, generally be circular or oval-
shaped.
(4) In the final rule, NMFS has refined the proposed minimum width
specifications and added a minimum gap measurement (from barb to shank)
for 18/0 circle hooks to provide clarification of the requirements. In
addition, because 16/0 non-offset circle hooks are to be allowed
outside of the NED closed area, the final rule includes minimum size
specifications (width and gap) for these hooks. To better ensure that
hooks are not offset beyond ten degrees, the final rule specifies that
allowable hooks may only be offset by the hook manufacturer.
(5) In the final rule, the specifications for the long-handled
dehooker for external hooks, and the long-handled device to pull an
inverted ``v'', at Sec. 635.21(c)(5)(i), have been modified from those
that were proposed. The minimum length of the extended reach handle for
both pieces of equipment must be equal to the freeboard of the vessel
or 6 ft (1.83 m), whichever is greater. In the proposed rule, the
handle length of the long-handled dehooker for external hooks was
specified as 3 ft (0.91 m), but this length was determined to be too
short for most vessels. The specifications for the long-handled device
to pull an inverted ``v'' were changed to be consistent with those for
the long-handled dehooker for external hooks, so that the same piece of
equipment could be used for both purposes.
(6) In the final rule, Sec. Sec. 635.23(f)(3) and 635.27(a)(3) are
amended, consistent with the above changes, to remove references to the
NED experimental fishery.
(7) The definition of ``Freeboard'' has been moved from the
proposed regulations in Sec. 635.21(c)(5), to the definitions section
in Sec. 635.2. The definition remains unchanged from that in the
proposed rule.
(8) In the final rule, Sec. 223.206(d)(1)(ii) has been modified
from the proposed regulatory text to be more consistent with the
terminology used in the HMS regulations.

Alternative NEPA Procedures

To more rapidly reduce sea turtle interactions and to mitigate the
economic impact of sea turtle bycatch mitigation measures, NMFS has
requested and been authorized to execute alternative procedures for the
preparation and completion of an SEIS. The Council on Environmental
Quality (CEQ) authorized a waiver of 14 of the standard 45 days for the
DSEIS comment period, and 26 of the standard 30 days for the waiting
period between the date of publication of the NOA for the FSEIS and
signature of the record of decision (ROD) for this action. The FSEIS
was posted on the HMS website on June 22, 2004, at http://www.nmfs.noaa.gov/sfa/hms/.
NMFS distributed an e-mail to its HMS

ACTION network regarding the availability of the FSEIS for comment. The
FSEIS comment period closed on June 29, 2004.

Classification

This final rule is published under the authority of the Magnuson-
Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Because this rule relieves a restriction by allowing vessels to
fish in the NED closed area, those portions of the rule relating to the
NED exemption, at Sec. 635.2 and Sec. Sec. 635.21(c)(2)(v) and
(c)(5)(iv), are not subject to the 30-day delayed effectiveness
provision of the Administrative Procedure Act pursuant to 5 U.S.C.
553(d)(1). Currently the NED is closed to all pelagic longline fishing
for HMS. Under this rule, vessels complying with specified hooks,
baits, and release gear requirements would be allowed to fish in the
NED closed area.
As required under the Regulatory Flexibility Act, 5.U.S.C. 601 et
seq., NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA)
that examines the economic impact this final rule is expected to have
on small entities, in order to determine ways to minimize significant
economic impacts. The Initial Regulatory Flexibility Analysis (IRFA)
was summarized in the proposed rule, which published on February 11,
2004 (69 FR 6621). The FSEIS prepared for this rule provides additional
discussion of the biological,

[[Page 40748]]

social, and economic impacts of all the alternatives considered. A copy
of the FSEIS/RIR/FRFA is available from NMFS (see ADDRESSES). A summary
of the FRFA follows:
A description of why this action is being considered, the
objectives and legal basis for the action, and a description of the
action are contained at the beginning of this section in the preamble
and in the SUMMARY section of the preamble.
NMFS considers all permit holders to be small entities. The final
management measures could potentially affect all vessels currently
permitted to participate in the HMS pelagic longline fishery, although
only about half (148) of all permit holders are actually active in this
fishery. As of November 2003, approximately 235 tuna longline limited
access permits had been issued. In addition, approximately 203 directed
swordfish limited access permits, 100 incidental swordfish limited
access permits, 249 directed shark limited access permits, and 357
incidental shark limited access permits had been issued. Because
vessels authorized to fish for swordfish and tunas with pelagic
longline gear must possess a tuna longline permit, a swordfish permit
(directed or incidental), and a shark permit (directed or incidental),
the maximum number of vessels potentially affected by this final rule
is 303 (the number of swordfish permits issued).
Other sectors of HMS fisheries such as dealers, processors, bait
houses, and gear manufacturers, some of which are considered small
entities, might be indirectly affected by the preferred alternatives.
However, because the final rule does not apply directly to them,
economic impacts on these other sectors are discussed in the FSEIS, but
not in the FRFA.
As described in the Comments and Responses section of the preamble,
NMFS received many comments on the potential for substantial economic
impacts associated with the proposed regulations, and two comments
specifically related to the IRFA. See Comment 22 for IRFA-specific
comments.
The IRFA/DSEIS/RIR acknowledged that the proposed measures could
potentially result in adverse economic impacts for small entities,
depending upon which hook and bait combination was used for particular
target species, and that the impacts were generally more severe for
mixed target species trips. In summary, a large portion of the public
comments confirmed these statements, and presented three primary
reasons for why the proposed measures would result in significant
adverse economic impacts. First, the proposed measures would not
provide flexibility to change hook-types and baits in reaction to
changing conditions that may occur on longer trips (i.e., species
availability and market prices). Second, limiting vessels to possessing
and/or using only 18/0 or larger circle hooks outside the NED would
substantially reduce catches of target species in the south Atlantic
and GOM regions (i.e., small yellowfin tuna, dolphin and wahoo).
Finally, the requirement limiting vessels to possessing and/or using
only either whole Atlantic mackerel or squid baits would be detrimental
to vessels fishing in areas outside the NED because Atlantic mackerel
is either unavailable, prohibitively expensive, or ineffective at
catching target species in the south Atlantic or GOM.
The proposed regulations required fishermen to make a decision,
prior to departing port, regarding the hook and bait combination that
would be deployed during the trip. In general, hook and bait
combinations that increase swordfish catches (18/0 offset circle hook
with mackerel) would simultaneously decrease tuna catches, and
combinations that increase tuna catches (18/0 non-offset circle hook
with squid) would simultaneously decrease swordfish catches. Impacts on
catches of shark, dolphin, and wahoo were unknown. The consequence of
choosing an inappropriate hook and bait combination for a specific
target species could have resulted in substantially reduced revenues.
Public comment, to a large extent, indicated that changes in revenue
associated with the proposed regulations would be substantially
negative, rather than positive, within the range of impacts that were
presented in the IRFA. In consideration of these public comments, the
Agency modified the final regulations to provide more flexibility
regarding allowable baits, offset and non-offset circle hooks, and
minimum hook sizes outside the NED. These modifications will mitigate
for potential adverse economic impacts, increase flexibility, address
geographical differences within the fishery, and ease the compliance
burden associated with the purchase and use of non-indigenous bait,
while ensuring significant conservation benefits for sea turtles.

Alternatives to the Rule

NMFS considered sixteen alternatives in developing the IRFA. These
alternatives included: no action (alternative A1), hook and bait
modifications outside the NED (alternatives A2 - A5), reopening the NED
without hook and bait restrictions (Alternative A6), reopening the NED
with hook and bait modifications (alternatives A7 - A10), a total
prohibition on pelagic longline gear in Atlantic HMS fisheries
(alternative A11), pelagic longline time and area closures
(alternatives A12 - A15), and sea turtle careful handling protocols and
release gear design standards (alternative A16). In response to public
comments, NMFS considered modifications to alternatives A5 and A10. The
FSEIS and FRFA describe alternatives A5 and A10 as alternatives A5(a)
and A10(b), and the modifications as alternatives A5(b) and A10(b).
Table 4 provides a summary of the net economic benefits and costs
associated with each of alternatives.

Table 4. Summary of the Net Benefits and Costs for Each Alternative
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alternative Estimated Net Economic Benefits Estimated Net Economic Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
A1...................................................... None None
A2...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
may realize an increase in gross revenues of revenues of between 47.93 and 51.74%,
between 3.57 and 11.72% attributable to potential declines in tuna
catches. Vessels embarking on mixed target
trips (swordfish and tuna) may experience a
decrease in gross revenues of between 36.20
and 48.17%. Vessels would incur an estimated
hook compliance cost of approximately $1,044

[[Page 40749]]

A3...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option I................................................ may realize an increase in gross revenues of revenues of between 47.93 and 51.74%,
between 3.57 and 11.72% attributable to potential declines in tuna
catches. Vessels embarking on mixed target
trips (swordfish and tuna) may experience a
decrease in gross revenues of between 36.20
and 48.17%. Vessels would incur an estimated
hook compliance cost of approximately $1,044
A3...................................................... Vessels able to successfully target tuna may Vessels may experience a decrease in gross
Option ii............................................... realize an increase in gross revenues of revenues of between 11.06 and 12.63%, stemming
between 11.95 and 17.25%. Vessels embarking on from potential declines in swordfish landings.
mixed target trips (swordfish and tuna) may Vessels embarking on mixed target trips
experience an increase in gross revenues of as (swordfish and tuna) may experience a decrease
much as 6.19% in gross revenues of as much as 0.68%. Vessels
would incur an estimated hook compliance cost
of approximately $1,044
A4...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option i................................................ may realize an increase in gross revenues of revenues of between 47.93 and 51.74%,
between 3.57 and 13.01% attributable to potential declines in tuna
catches. Vessels embarking on mixed target
trips (swordfish and tuna) may experience a
decrease in gross revenues of between 36.20
and 48.17%. Vessels would incur an estimated
hook compliance cost of approximately $1,044
A4...................................................... Vessels able to successfully target tuna may Vessels may experience a decrease in gross
Option ii............................................... realize an increase in gross revenues of revenues of between 11.06 and 12.63%, stemming
between 11.95 and 17.25%. Vessels embarking on from potential declines in swordfish landings.
mixed target trips (swordfish and tuna) may Vessels embarking on mixed target trips
experience an increase in gross revenues of as (swordfish and tuna) may experience a decrease
much as 6.19% in gross revenues of as much as 0.68%. Vessels
would incur an estimated hook compliance cost
of approximately $1,044
A4...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option iii.............................................. may realize an increase in gross revenues of revenues of as much as 53.28%, attributable to
as much as 24.58% potential declines in tuna catches. Vessels
embarking on mixed target trips (swordfish and
tuna) may experience a decrease in gross
revenues of 28.70%. Vessels would incur an
estimated hook compliance cost of
approximately $1,433
A5 (a).................................................. No change is expected in gross revenues Vessels may experience a decrease in gross
attributable to tuna revenues of between 3.88 and 7.75%,
attributable to potential declines in
swordfish catches. Vessels embarking on mixed
target trips (swordfish and tuna) may
experience a decrease in gross revenues of
between 3.87 and 7.75%. Vessels would incur an
estimated hook compliance cost of
approximately $885
A5 (b).................................................. No change is expected in gross revenues Vessels may experience a decrease in gross
attributable to tuna revenues of between 3.88 and 7.75%,
attributable to potential declines in
swordfish catches. Vessels embarking on mixed
target trips (swordfish and tuna) may
experience a decrease in gross revenues of
between 3.87 and 7.75%. Vessels would incur an
estimated hook compliance cost of
approximately $885
A7...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
may realize an increase in gross revenues of revenues of between 9.15 and 9.88%,
between 8.13 and 26.65%. Vessels embarking on attributable to potential declines in tuna
mixed target trips (swordfish and tuna) may catches. Vessels embarking on mixed target
experience an increase in gross revenues of as trips (swordfish and tuna) may experience a
much as 17.50% decrease in gross revenues of as much as
1.75%. Vessels would incur an estimated hook
compliance cost of approximately $1,044

[[Page 40750]]

A8...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
may realize an increase in gross revenues of revenues of as much as 10.47%, attributable to
as much as 5.11% potential declines in tuna catches. Vessels
embarking on mixed target trips (swordfish and
tuna) may experience a decrease in gross
revenues of 5.36%. Vessels would incur an
estimated hook compliance cost of
approximately $2,400
A9...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option i................................................ may realize an increase in gross revenues of revenues of as much as 10.17%, attributable to
as much as 55.88%. Vessels embarking on mixed potential declines in tuna catches. Vessels
target trips (swordfish and tuna) may would incur an estimated hook compliance cost
experience an increase in gross revenues of of approximately $1,433
45.71%
A9...................................................... Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option ii............................................... may realize an increase in gross revenues of revenues of between 9.15 and 9.88%,
between 8.13 and 26.65%. Vessels embarking on attributable to potential declines in tuna
mixed target trips (swordfish and tuna) may catches. Vessels embarking on mixed target
experience an increase in gross revenues of as trips (swordfish and tuna) may experience a
much as 17.50% decrease in gross revenues of as much as
1.75%. Vessels would incur an estimated hook
compliance cost of approximately $1,044
A10 (a)................................................. Vessels able to successfully target swordfish Vessels may experience a decrease in gross
Option i................................................ may realize an increase in gross revenues of revenues of between 9.15 and 9.88%,
between 8.13 and 26.65%. Vessels embarking on attributable to potential declines in tuna
mixed target trips (swordfish and tuna) may catches. Vessels embarking on mixed target
experience an increase in gross revenues of as trips (swordfish and tuna) may experience a
much as 17.50% decrease in gross revenues of as much as
1.75%. Vessels would incur an estimated hook
compliance cost of approximately $1,044
A10 (a)................................................. Vessels able to successfully target tuna may Vessels may experience a decrease in gross
Option ii............................................... realize an increase in gross revenues of revenues of between 25.16 and 28.72%, stemming
between 2.28 and 3.29% from potential declines in swordfish landings.
Vessels embarking on mixed target trips
(swordfish and tuna) may experience a decrease
in gross revenues of between 21.86 and 26.44%.
Vessels would incur an estimated hook
compliance cost of approximately $1,044
A10 (b)................................................. Vessels able to successfully target swordfish Vessels may experience a decrease in gross
may realize an increase in gross revenues of revenues of as much as 28.72%, stemming from
as much as 26.65%. Vessels able to potential declines in swordfish landings and a
successfully target tuna may realize an decrease in gross revenues of as much as
increase in gross revenues of as much as 9.88%, attributable to potential declines in
3.29%. Vessels embarking on mixed target trips tuna catches. Vessels embarking on mixed
(swordfish and tuna) may experience an target trips (swordfish and tuna) may
increase in gross revenues of as much as experience a decrease in gross revenues of as
29.95% much as 38.59%. Vessels would incur an
estimated hook compliance cost of
approximately $1,044
A13..................................................... Vessels would likely increase catches of Vessels would likely experience a 2% decrease
swordfish by 17% and bigeye tuna by 32% (in in yellowfin tuna catches (in numbers of
numbers of fish) fish). Vessels may experience increased fuel
costs associated with an increase in distances
vessels may need to travel to reach open areas
A14..................................................... Vessels would likely increase catches of Vessels would likely experience a 2% decrease
swordfish by 18% and bigeye tuna by 33% (in in yellowfin tuna catches (in numbers of
numbers of fish) fish). Vessels may also experience increased
fuel costs associated with an increase in
distances vessels may need to travel to reach
open areas
A15..................................................... Vessels would likely increase catches of Vessels may experience increased fuel costs
swordfish by 5% and yellowfin tuna by 3%, and associated with an increase in distances
bigeye tuna by 17% (in numbers of fish) vessels may need to travel to reach open areas
A16..................................................... Minor positive benefit from reduced hook Vessels would incur an estimated compliance
replacement costs (if hooks are retrieved cost of approximately $485.00 - $1056.50
undamaged). May increase profits for suppliers
who provide release equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 40751]]

Alternative A1 (no action) has been rejected because it would not
provide for any additional sea turtle bycatch and bycatch mortality
reduction measures. Further, it would allow the full adverse economic
impacts of the NED closure to be realized, given the termination of the
NED experiment and its attendant economic benefits.
Alternative A2 (limit vessels with pelagic longline gear onboard,
at all times, in all areas open to pelagic longline fishing excluding
the NED, to possessing onboard and/or using only 18/0 or larger circle
hooks with an offset not to exceed 10 degrees and whole mackerel bait)
would likely have produced significant positive ecological impacts.
However, it would also likely increase adverse socio-economic impacts
on fishermen, compared to selected alternative A5(b), by limiting
flexibility in selecting a more efficient hook and bait treatment for
use in targeting tuna. As such, those fishermen outside the NED unable
to successfully target swordfish would have been adversely impacted to
a greater extent, because of the expected loss in tuna revenues
associated with this hook and bait treatment. Further, many commenters
stated that 18/0 circle hooks would be too large to catch some target
species encountered outside the NED. For these reasons, alternative A2
was rejected at this time.
Alternative A3 (limit vessels with pelagic gear onboard, in areas
open to pelagic longline fishing, excluding the NED, to possessing
onboard and/or using only one of the following combinations: (i)18/0 or
larger circle hooks with and offset not to exceed 10 degrees and whole
mackerel bait; or (ii) 18/0 or larger non-offset circle hooks and squid
bait) would likely produce significant positive ecological impacts.
However, many commenters stated that this alternative would not provide
enough flexibility for fishermen to adjust to changing market
conditions, change target species while at sea, or employ traditional
baits. Commenters also stated that 18/0 circle hooks may be too large
to catch some target species encountered outside the NED. Alternative
A3 was rejected, at his time, because it would likely result in greater
negative socio-economic impacts than selected alternative A5(b).
Alternative A4 (limit vessels with pelagic longline gear onboard,
at all times, in all areas open to pelagic longline fishing excluding
the NED, to possessing onboard and/or using only one of the following
combinations: (i) 18/0 or larger circle hook with an offset not to
exceed 10 degrees and whole mackerel bait; or, (ii) 18/0 or larger non-
offset circle hooks and squid bait; or, (iii) 9/0 ``J''-hook with an
offset not to exceed 25 degrees and whole mackerel bait) may produce
either greater or lesser adverse economic impacts than selected
alternative A5(b), depending upon the hook and bait combination chosen
and the target species of a specific trip. However, this alternative
was rejected because ``J''-hooks are likely to have a higher post-
mortality rate than circle hooks. Interactions with ``J''-hooks have a
higher incidence of deep hooking and tend to result in more serious
injuries for sea turtles.
Alternative A5(a) (limit vessels with pelagic longline gear
onboard, at all times, in all areas open to pelagic longline fishing
excluding the NED, to possessing onboard and/or using only 16/0 or
larger circle hooks with an offset not to exceed 10 degrees) was
rejected because the use of offset 16/0 circle hooks, as opposed to
non-offset 16/0 circle hooks, would likely result in higher rates of
throat or stomach hooked loggerhead sea turtles and associated
mortalities. Alternative A5(a) would likely have minor to moderate
adverse economic impacts on fishermen, given potential decreases in
swordfish catch.
Alternative A6 (allow pelagic longline fishing for Atlantic HMS in
the NED, maintaining existing restrictions) would have positive social
and economic benefits. This alternative would not provide for any
additional sea turtle bycatch and bycatch mortality reduction measures
or ensure compliance with the ESA. Therefore, it was rejected.
Alternative A7 (open the NED to pelagic longline fishing and limit
vessels with pelagic longline gear onboard in that area, at all times,
to possessing onboard and/or using only 18/0 or larger circle hooks
with an offset not to exceed 10 degrees and whole mackerel bait) would
be effective at reducing sea turtle interactions, and would have
positive social and economic effects as compared to the status quo or
historical perspectives. However, it was rejected because allowing only
a single hook and bait in the NED would limit the ability of fishermen
to target swordfish or tunas, more so than selected alternatives A10(a)
and A10(b).
Alternative A8 (limit vessels with pelagic longline gear onboard,
at all times, in the NED to possessing onboard and/or using only 20/0
or larger circle hooks with an offset not to exceed 10 degrees) would
be effective at reducing sea turtle interactions, and would have
positive social and economic benefits over the status quo. However, it
would have adverse economic impacts when viewed historically. This
alternative was rejected because it would have a greater adverse impact
on revenues associated with landings of tuna, and a less positive
impact on revenues associated with landings of swordfish when compared
to selected alternative A10(b).
Alternative A9 (limit vessels with pelagic longline gear onboard in
the NED, to possessing and/or using no more than one of the following
hook and bait combinations: (i) 9/0 ``J''-hooks with an offset not to
exceed 25 degrees and whole mackerel bait; or (ii) 18/0 or larger
circle hooks with an offset not to exceed 10 degrees and whole mackerel
bait) may provide greater positive or negative economic impacts than
selected alternative A10(b), given the sizable anticipated changes in
both swordfish and tuna catches. However, this alternative was rejected
because the use of ``J''-hooks is expected to result in sea turtle
higher post-release mortality rates than circle hooks.
Alternative A10(a) (limit vessels with pelagic longline gear
onboard in the NED, to possessing and/or using no more than one of the
following hook and bait combinations: (i) 18/0 or larger circle hook
with an offset not to exceed 10 degrees and whole mackerel bait; or
(ii) 18/0 or larger non-offset circle hook and squid bait) would be
effective at reducing sea turtle interactions and would have positive
social and economic impacts over the status quo. However, many
commenters stated that alternative A10(a) would not provide enough
flexibility for fishermen to adjust to changing market conditions or
change target species while at sea. Alternative A10(a) was rejected
because it would likely result in greater negative socio-economic
impacts than selected alternative A10(b).
Alternative A11 (prohibit the use of pelagic longline gear in
Atlantic HMS fisheries) would afford the greatest protection to sea
turtles domestically, but it was rejected, at this time, because other
bycatch and bycatch mortality reduction alternatives are available, and
alternative A11 would impose the most significant adverse economic
impacts of all the alternatives.
Alternative A12 (close the western GOM year-round) would likely
have severe adverse economic impacts on a distinct segment of the
fishery. Alternative A12 was rejected, at this time, because other
bycatch and bycatch mortality reduction alternatives are available. A
GOM or alternative closure may be considered in a future rulemaking, as
necessary, consistent with the June 1, 2004, BiOp for the fishery.
Additional analyses would be necessary to incorporate changes in the
environmental baseline resulting from

[[Page 40752]]

selected circle hook and sea turtle release and disentanglement gear
alternatives.
The time/area closures in alternatives A13, A14, and A15 were each
analyzed with and without a redistribution of fishing effort. For this
reason, the results may indicate increases in target and non-target
species catches for certain alternatives.
Alternative A13 (close an area of the central GOM year-round) would
likely have substantial economic impacts on a large and distinct
segment of the U.S. pelagic longline fleet, communities, buyers, and
dealers in the Gulf of Mexico. While data indicate potential increases
in catches of swordfish and bigeye tuna of 17 and 32 percent in numbers
of fish, respectively, and a decrease of yellowfin tuna catches of two
percent in numbers of fish, the actual impacts are unclear, as
potential changes in the weight of landings remain unknown. Loggerhead
sea turtle interactions are projected to increase due to relocation of
fishing effort under this alternative. While the impacts have not been
quantified, NMFS anticipates that the overall social and economic
impacts of a closure of this size would likely be adverse. Because a
high percentage of the historical fishing effort has been located in
the area considered for the time/area closure, a substantial number of
fishing vessels may need to travel greater distances to reach favorable
fishing grounds and spending longer periods at sea, which could
potentially increase fuel, bait, ice, and crew costs. In combination
with other alternatives, such as hook and bait restrictions, this
alternative would have even greater adverse impacts, and more
substantial adverse impacts on the GOM segment of the fleet, than the
preferred alternatives. Alternative A13 was rejected, at this time,
because other bycatch and bycatch mortality reduction alternatives are
available. A GOM or alternative closure may be considered in a future
rulemaking, as necessary, consistent with the June 1, 2004, BiOp for
the fishery. Additional analyses would be necessary to incorporate
changes in the environmental baseline resulting from selected circle
hook and sea turtle release and disentanglement gear alternatives.
Alternative A14 (prohibit the use of pelagic longline gear in HMS
Fisheries in areas of the Central GOM and NEC year-round) was rejected
because, at this time, other bycatch and bycatch mortality reduction
alternatives are available. A GOM or alternative closure may be
considered in a future rulemaking, as necessary, consistent with the
June 1, 2004, BiOp for the fishery. Additional analyses would be
necessary to incorporate changes in the environmental baseline
resulting from selected circle hook and sea turtle release and
disentanglement gear alternatives. Under alternative A14, swordfish and
bigeye tuna catches could potentially increase 18 and 33 percent in
numbers of fish, respectively, and catches of yellowfin tuna could
potentially decrease by two percent. However, the actual impacts are
unclear because changes in the weight of landings is not known. Because
a high percentage of the historical fishing effort has been located in
the area considered for the time/area closure, a substantial number of
fishing vessels may need to travel greater distances to reach favorable
fishing grounds and spending longer periods at sea, which could
potentially increase fuel, bait, ice, and crew costs. In combination
with other alternatives, such as hook and bait restrictions,
alternative A14 would be expected to have even greater adverse impacts,
and more substantial adverse impacts than the selected alternatives.
Alternative 15 (prohibit the use of pelagic longline gear in HMS
Fisheries in areas of the Central GOM and NEC from May through October)
was rejected, at this time, because other bycatch and bycatch mortality
reduction alternatives are available. A GOM or alternative closure may
be considered in a future rulemaking, as necessary, consistent with the
June 1, 2004, BiOp for the fishery. Additional analyses would be
necessary to incorporate changes in the environmental baseline
resulting from selected circle hook and sea turtle release and
disentanglement gear alternatives. Under alternative A15, swordfish,
yellowfin tuna, and bigeye tuna catches could potentially increase five
percent, three percent, and 17 percent in numbers of fish,
respectively. However, the actual impacts are unclear because changes
in the weight of landings are not known. Because a high percentage of
the historical fishing effort has been located in the area considered
for the time/area closure, a substantial number of fishing vessels may
need to travel greater distances to reach favorable fishing grounds and
spending longer periods at sea, which could potentially increase fuel,
bait, ice, and crew costs. In combination with other alternatives, such
as hook and bait restrictions, alternative A15 would be expected to
have even greater adverse impacts, and more substantial adverse impacts
than the preferred alternatives.

Reasons for Selecting Final Management Measures

The selected alternatives (A5(b), A10(b) and A16) are intended to
reduce sea turtle interaction and mortality levels while minimizing
adverse economic impacts to the extent practicable, consistent with the
ESA, Magnuson-Stevens Act, and other applicable law. Alternatives A5(b)
and A10(b) both provide flexibility to utilize circle hooks and baits
that are effective at reducing sea turtle interactions and post-hooking
mortality, without adversely impacting catches of swordfish and tunas.
The projected economic impacts associated with these alternatives are
presented below. An average annual vessel gross revenue estimate of
$178,619 was assumed for these analyses.
Alternative A5(b) limits vessels with pelagic longline gear
onboard, at all times, in all areas open to pelagic longline fishing,
excluding the NED, to possessing onboard and/or using only 16/0 or
larger non-offset circle hooks and/or 18/0 or larger circle hooks with
an offset not to exceed 10 degrees. Only whole finfish and squid baits
may be possessed and/or utilized with allowable hooks. Under this
alternative, fishermen may experience little or no change in catches of
tunas (i.e., tuna catch remains at 58.6 percent by weight), and a 10 to
20 percent decrease in catches of swordfish. Based on this, vessel
revenues attributable to tunas would likely remain at approximately
$104,670. Vessel revenues attributable to swordfish may possibly
decrease by 3.88 ($6,925) to 7.75 ($13,850) percent to between $171,694
and $164,769. However, because fishermen have the option of using a
hook and bait combination shown to be more effective at catching
swordfish, this reduction in revenues is not expected to occur. Actual
impacts of this alternative would depend on the frequency with which
particular hook and bait combinations are employed and species
targeted.
Alternative A10(b) allows pelagic longline vessels to fish in the
NED, but requires vessels in that area, at all times, to possess
onboard and/or use only 18/0 or larger circle hooks with an offset not
to exceed 10 degrees. Only whole mackerel and squid baits may be
possessed and/or utilized with the allowable hooks. Depending upon
whether fishermen use the 18/0 offset circle hook with whole mackerel
bait or the 18/0 non-offset circle hook with squid, respectively, there
may be a -32.58 percent to +30.24 percent change in swordfish catches
(by weight) and a -87.64 to possibly as much as +29.22

[[Page 40753]]

percent (by weight) change in tuna catches. (Note: Increases in tuna
landings during the NED experiment were substantial but, given limited
data, were determined to be not statistically significant.) Thus, the
portion of landings of historically attributable to swordfish may shift
from 88.54 percent (by weight) of landings to between 59.69 and 115
percent. Gross revenues attributable to swordfish may vary between -
28.72 percent (-$51,292) and +26.65 percent ($47,608), resulting in
overall gross vessel revenues of between $127,327 and $226,227. The
portion of vessel landings historically attributable to tuna may shift
from 9.85 percent of landings to between 1.22 and 12.73 percent. Gross
revenues of vessels attributable to tuna may vary by -9.88 percent (-
$17,642) to +3.29 percent ($5,882), resulting in overall gross vessel
revenues of between $160,997 and $184,501. For vessels engaging in
mixed target trips, estimated gross vessel revenues could range between
$109,685 and $232,109. These figures likely represent over estimates of
both losses and gains. The actual impact would likely fall between
these estimates, depending on the frequency with which particular hook
and bait combinations are employed and species targeted. Given that no
pelagic longline vessels can currently fish in the NED, any revenues
generated from fishing in that area under A10(b), would increase gross
vessel revenues, compared with the status quo.
Alternative A16 requires the possession and use of sea turtle
release gear, and compliance with careful handling protocols. This
alternative would likely have only minor initial adverse economic
impacts, as there are currently similar requirements in the pelagic
longline fishery, with some positive long-term impacts resulting from
reduced hook replacement costs. NMFS estimates that a full suite of
release gear could cost between $485.00 and $1056.50. These costs could
be reduced if fishermen were able to construct some pieces of equipment
themselves, rather than purchasing pre-assembled gear from commercial
suppliers.
The final regulations do not duplicate, overlap, or conflict with
any other relevant regulations, federal or otherwise (5 U.S.C.
603(b)(5)). In addition, the final regulations do not contain
additional reporting or record-keeping requirements, but will result in
additional compliance requirements, including the possession and use of
specific hook types, baits, and sea turtle release equipment.
The final measures will likely result in an initial increase in
costs, but may result in longer-term cost savings because circle hooks
have lower replacement costs than ``J''-hooks, and because the newly-
required release gears may result in increased hook retention. An
informal internet and telephone survey of hook suppliers provides a
range in price of approximately $0.28 to $0.50 ($0.3539 avg) per hook
for 16/0 circle hooks, and $0.26 to $0.66 ($0.4176 avg) per hook for
18/0 commercial grade circle hooks. Large commercial grade ``J''-hooks
range from approximately $0.26 to $1.00 (avg. $0.5733) per hook.
Assuming that an average of 2,500 hooks per vessel are needed to
initially comply with the hook requirements (equip vessels with enough
hooks for one trip), the compliance cost for 16/0 circle hooks, on a
per vessel basis, may range from $697.50 to $1241.75 with an
anticipated average cost of approximately $884.75. Similarly, assuming
that an average of 2,500 18/0 circle hooks per vessel are needed to
initially comply with the hook requirements, the compliance cost, on a
per vessel basis, may range from $657.25 to $1,650.00, with an
anticipated average cost of approximately $1,044.00. The circle hook
requirements should not increase the needed skill level required for
HMS fisheries, as the physical act of switching hook types is a normal
aspect of commercial fishing operations. However, there probably will
be a period of time during which fishing crews adjust, as with any new
gear. Circle hooks are not expected to be prohibitively difficult to
work with, as some vessels are already utilizing them.
The requirement to purchase and use sea turtle release gear would
require additional skills and would impose a compliance cost for
purchase of the gear of between $485.00 and $1,056.50. These costs may
be reduced if fishermen are able to construct various pieces of
equipment themselves, rather than purchasing pre-assembled gear from a
commercial supplier. In addition, specific protocols regarding the
proper use of sea turtle release equipment and onboard turtle handling
procedures are being implemented. These protocols may increase the
needed skill level required for HMS fisheries. A document containing
the sea turtle careful release protocols will be issued, and will be
required to be onboard. Also, NMFS will conduct training on the proper
use of the release equipment.
Traditionally, bait accounts for 16 to 26 percent of the total
costs per trip. Any fluctuations in the price and availability of
mackerel, whole finfish, or squid baits could have a substantial
positive or negative impact on profitability. These baits are generally
abundant, but availability will likely depend upon harvesting and
distributional capacities. There could also be unquantifiable
compliance costs as fishing crews who have not traditionally fished
with a particular hook and bait combination familiarize themselves with
the most efficient techniques.
NMFS has determined that the list of actions in this rule, which
seeks to reduce bycatch and bycatch mortality of sea turtles in the
Atlantic pelagic longline fishery, are consistent, to the maximum
extent practicable with the enforceable policies of the coastal states
in the Atlantic, Gulf of Mexico, and Caribbean that have Federally
approved coastal zone management programs under the Coastal Zone
Management Act (CZMA). This determination was submitted for review by
the responsible state agencies under section 307 of the CZMA during the
proposed rule stage. Seven states replied affirmatively regarding the
consistency determination. NMFS presumes that the remaining states also
concur with this determination.
A formal section 7 consultation under the ESA was prepared for this
final action. A summary of the BiOp, dated June 1, 2004, along with its
RPA, RPMs, and T & Cs is provided in the preamble of this final rule.

List of Subjects

50 CFR Part 223

Endangered and threatened species, Fisheries, Fishing, Fishing
vessels.

50 CFR Part 635

Endangered and threatened species, Fisheries, Fishing, Fishing
vessels, Foreign relations, Intergovernmental relations, Penalties,
Statistics, Treaties.

Dated: June 30, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 223 and 635 are
amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

Authority: 16 U.S.C. 1531 et seq.

0
2. In Sec. 223.206, paragraph (d)(1)(ii) is revised to read as
follows:

[[Page 40754]]

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 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.
* * * * *

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
2. Effective June 30, 2004, in Sec. 635.2, new definitions for
``Circle hook,'' ``Freeboard,'' and ``Offset circle hook'' are added in
alphabetical order to read as follows:

Sec. 635.2 Definitions.

* * * * *
Circle hook means a fishing hook originally designed and
manufactured so that the point is turned perpendicularly back to the
shank to form a generally circular, or oval, shape.
* * * * *
Freeboard is defined as the working distance between the top rail
of the gunwale to the water's surface, and will vary based on the
vessel design.
* * * * *
Offset circle hook means a circle hook originally designed and
manufactured so that the barbed end of the hook is displaced relative
to the parallel plane of the eyed-end, or shank, of the hook when laid
on its side.
* * * * *

0
3. Effective June 30, 2004, in Sec. 635.21, paragraph (c)(2)(v) is
revised, and paragraph (c)(5)(iv) is added to read as follows:

Sec. 635.21 Gear operation and deployment restrictions.

* * * * *
(c) * * *
(2) * * *
(v) In the Northeast Distant closed area at any time, unless
persons onboard the vessel comply with the following:
(A) The vessel is limited, at all times, to possessing onboard and/
or using only 18/0 or larger circle hooks with an offset not to exceed
10[deg]. The outer diameter of the hook at its widest point must be no
smaller than 2.16 inches (55 mm) when measured with the eye of the hook
on the vertical axis (y-axis) and perpendicular to the horizontal axis
(x-axis), and the distance between the hook point and the shank (i.e.,
the gap) must be no larger than 1.13 inches (28.8 mm). The allowable
offset is measured from the barbed end of the hook, and is relative to
the parallel plane of the eyed-end, or shank, of the hook when laid on
its side. The only allowable offset circle hooks are those that are
offset by the hook manufacturer; and,
(B) The vessel is limited, at all times, to possessing onboard and/
or using only whole Atlantic mackerel and/or squid bait; and,
(C) Vessels must possess, inside the wheelhouse, a document
provided by NMFS entitled, ``Careful Release Protocols for Sea Turtle
Release with Minimal Injury,'' and must post, inside the wheelhouse,
sea turtle handling and release guidelines provided by NMFS; and,
(D) Required sea turtle bycatch mitigation gear, which NMFS has
approved under paragraph (c)(5)(iv) of this section, on the initial
list of ``NMFS-Approved Models For Equipment Needed For The Careful
Release of Sea Turtles Caught In Hook And Line Fisheries,'' must be
carried on board, and must be used in accordance with the handling
requirements specified in paragraphs (c)(2)(v)(E) - (G) of this
section; and,
(E) Sea turtle bycatch mitigation gear, specified in paragraph
(c)(2)(v)(D) of this section, must be used to disengage any hooked or
entangled sea turtles that cannot be brought on board, and to
facilitate access, safe handling, disentanglement, and hook removal or
hook cutting of sea turtles that can be brought on board, where
feasible. Sea turtles must be handled, and bycatch mitigation gear must
be used, in accordance with the careful release protocols and handling/
release guidelines specified in paragraph (c)(2)(v)(C) of this section,
and in accordance with the onboard handling and resuscitation
requirements specified in Sec. 223.206(d)(1).
(F) Boated turtles. When practicable, active and comatose sea
turtles must be brought on board, with a minimum of injury, using a
dipnet approved on the initial list specified in paragraph (c)(2)(v)(D)
of this section. All turtles less than 3 ft (.91 m) carapace length
should be boated, if sea conditions permit. A boated turtle should be
placed on a standard automobile tire, or cushioned surface, in an
upright orientation to immobilize it and facilitate gear removal. Then,
it should be determined if the hook can be removed without causing
further injury. All externally embedded hooks should be removed, unless
hook removal would result in further injury to the turtle. No attempt
to remove a hook should be made if the hook has been swallowed and the
insertion point is not visible, or if it is determined that removal
would result in further injury. If a hook cannot be removed, as much
line as possible should be removed from the turtle using approved
monofilament line cutters from the initial list specified in paragraph
(c)(2)(v)(D) of this section, and the hook should be cut as close as
possible to the insertion point before releasing the turtle using bolt
cutters from that list. If a hook can be removed, an effective
technique may be to cut off either the barb, or the eye, of the hook
using bolt cutters, and then to slide the hook out. When the hook is
visible in the front of the mouth, an approved mouth-opener from the
initial list specified in paragraph (c)(2)(v)(D) of this section may
facilitate opening the turtle's mouth, and an approved gag from that
list may facilitate keeping the mouth open. Short-handled dehookers for
ingested hooks, long-nose pliers, or needle-nose pliers from the
initial list specified in paragraph (c)(2)(v)(D) of this section should
be used to remove visible hooks from the mouth that have not been
swallowed on boated turtles, as appropriate. As much gear as possible
must be removed from the turtle without causing further injury prior to
its release. Refer to the careful release protocols and handling/
release guidelines required in paragraph (c)(2)(v)(C) of this section,
and the handling and resuscitation requirements specified in Sec.
223.206(d)(1) of this title, for additional information.
(G) Non-boated turtles. If a sea turtle is too large, or hooked in
a manner that precludes safe boating without causing further damage or
injury to the turtle, sea turtle bycatch mitigation gear, specified in
paragraph (c)(2)(v)(D) of this section, must be used to disentangle sea
turtles from fishing gear and disengage any hooks, or to clip the line
and remove as much line as possible from a hook that cannot be removed,
prior to releasing the turtle, in accordance with the protocols
specified in paragraph (c)(2)(v)(C) of this section. Non-boated turtles
should be brought close to the boat and provided with time to calm
down. Then, it must be determined whether or not the hook can be
removed without causing further injury. All externally embedded hooks
must be removed, unless hook removal

[[Page 40755]]

would result in further injury to the turtle. No attempt should be made
to remove a hook if it has been swallowed, or if it is determined that
removal would result in further injury. If the hook cannot be removed
and/or if the animal is entangled, as much line as possible must be
removed prior to release, using an approved line cutter from the
initial list specified in paragraph (c)(2)(v)(D) of this section. If
the hook can be removed, it must be removed using a long-handled
dehooker from the initial list specified in paragraph (c)(2)(v)(D) of
this section. Without causing further injury, as much gear as possible
must be removed from the turtle prior to its release. Refer to the
careful release protocols and handling/release guidelines required in
paragraph (c)(2)(v)(C) of this section, and the handling and
resuscitation requirements specified in Sec. 223.206(d)(1) of this
title, for additional information.
* * * * *
(5) * * *
(iv) Approval of sea turtle bycatch mitigation gear. NMFS will file
with the Office of the Federal Register for publication an initial list
of required sea turtle bycatch mitigation gear that NMFS has approved
as meeting the minimum design standards specified under paragraph
(c)(5)(i) of this section. Other devices proposed for use as line
clippers or cutters or dehookers, as specified under paragraphs
(c)(5)(i)(A), (B), (C), (G), (H), and (K) of this section, must be
approved as meeting the minimum design standards before being used.
NMFS will examine new devices, as they become available, to determine
if they meet the minimum design standards, and will file with the
Office of the Federal Register for publication notification of any new
devices that are approved as meeting the standards.
* * * * *

0
4. In Sec. 635.21, paragraphs (a)(3), (c)(5)(i), and (c)(5)(ii) are
revised; and paragraph (c)(5)(iii)(C) is added to read as follows:

Sec. 635.21 Gear operation and deployment restrictions.

(a) * * *
(3) All vessels that have pelagic or bottom longline gear on board
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 post inside the wheelhouse the sea turtle handling
and release guidelines provided by NMFS.
* * * * *
(c) * * *
(5) * * *
(i) Possession and use of required mitigation gear. Required sea
turtle bycatch mitigation gear, which NMFS has approved under paragraph
(c)(5)(iv) of this section as meeting the minimum design standards
specified in paragraphs (c)(5)(i)(A) through (c)(5)(i)(L) of this
section, must be carried on board, and must be used to disengage any
hooked or entangled sea turtles in accordance with the handling
requirements specified in paragraph (c)(5)(ii) of this section.
(A) Long-handled line clipper or cutter. Line cutters are intended
to cut high test monofilament line as close as possible to the hook,
and assist in removing line from entangled sea turtles to minimize any
remaining gear upon release. NMFS has established minimum design
standards for the line cutters. The LaForce line cutter and the
Arceneaux line clipper are models that meet these minimum design
standards, and may be purchased or fabricated from readily available
and low-cost materials. One long-handled line clipper or cutter and a
set of replacement blades are required to be onboard. The minimum
design standards for line cutters are as follows:
(1) A protected and secured cutting blade. The cutting blade(s)
must be capable of cutting 2.0-2.1 mm (0.078 in. - 0.083 in.)
monofilament line (400-lb test) or polypropylene multistrand material,
known as braided or tarred mainline, and must be maintained in working
order. The cutting blade must be curved, recessed, contained in a
holder, or otherwise designed to facilitate its safe use so that direct
contact between the cutting surface and the sea turtle or the user is
prevented. The cutting instrument must be securely attached to an
extended reach handle and be easily replaceable. One extra set of
replacement blades meeting these standards must also be carried on
board to replace all cutting surfaces on the line cutter or clipper.
(2) An extended reach handle. The line cutter blade must be
securely fastened to an extended reach handle or pole with a minimum
length equal to, or greater than, 150 percent of the freeboard, or a
minimum of 6 feet (1.83 m), whichever is greater. It is recommended,
but not required, that the handle break down into sections. There is no
restriction on the type of material used to construct this handle as
long as it is sturdy and facilitates the secure attachment of the
cutting blade.
(B) Long-handled dehooker for ingested hooks. A long-handled
dehooking device is intended to remove ingested hooks from sea turtles
that cannot be boated. It should also be used to engage a loose hook
when a turtle is entangled but not hooked, and line is being removed.
The design must shield the barb of the hook and prevent it from re-
engaging during the removal process. One long-handled device to remove
ingested hooks is required onboard. The minimum design standards are as
follows:
(1) Hook removal device. The hook removal device must be
constructed of 5/16-inch (7.94 mm) 316 L stainless steel and have a
dehooking end no larger than 1 7/8-inches (4.76 cm) outside diameter.
The device must securely engage and control the leader while shielding
the barb to prevent the hook from re-engaging during removal. It may
not have any unprotected terminal points (including blunt ones), as
these could cause injury to the esophagus during hook removal. The
device must be of a size appropriate to secure the range of hook sizes
and styles used in the pelagic longline fishery targeting swordfish and
tuna.
(2) Extended reach handle. The dehooking end must be securely
fastened to an extended reach handle or pole with a minimum length
equal to or greater than 150 percent of the freeboard, or a minimum of
6 ft (1.83 m), whichever is greater. It is recommended, but not
required, that the handle break down into sections. The handle must be
sturdy and strong enough to facilitate the secure attachment of the
hook removal device.
(C) Long-handled dehooker for external hooks. A long-handled
dehooker is required for use on externally-hooked sea turtles that
cannot be boated. The long-handled dehooker for ingested hooks
described in paragraph (c)(5)(i)(B) of this section would meet this
requirement. The minimum design standards are as follows:
(1) Construction. A long-handled dehooker must be constructed of 5/
16-inch (7.94 mm) 316 L stainless steel rod. A 5-inch (12.7-cm) tube T-
handle of 1-inch (2.54 cm) outside diameter is recommended, but not
required. The design should be such that a fish hook can be rotated
out, without pulling it out at an angle. The dehooking end must be
blunt with all edges rounded. The device must be of a size appropriate
to secure the range of hook sizes and styles used in the pelagic
longline fishery targeting swordfish and tuna.
(2) Extended reach handle. The handle must be a minimum length
equal

[[Page 40756]]

to the freeboard of the vessel or 6 ft (1.83 m), whichever is greater.
(D) Long-handled device to pull an ``inverted V''. This tool is
used to pull a ``V'' in the fishing line when implementing the
``inverted V'' dehooking technique, as described in the document
entitled ``Careful Release Protocols for Sea Turtle Release With
Minimal Injury,'' required under paragraph (a)(3) of this section, for
disentangling and dehooking entangled sea turtles. One long-handled
device to pull an ``inverted V'' is required onboard. If a 6-ft (1.83
m) J-style dehooker is used to comply with paragraph (c)(5)(i)(C) of
this section, it will also satisfy this requirement. Minimum design
standards are as follows:
(1) Hook end. This device, such as a standard boat hook or gaff,
must be constructed of stainless steel or aluminum. A sharp point, such
as on a gaff hook, is to be used only for holding the monofilament
fishing line and should never contact the sea turtle.
(2) Extended reach handle. The handle must have a minimum length
equal to the freeboard of the vessel, or 6 ft (1.83 m), whichever is
greater. The handle must be sturdy and strong enough to facilitate the
secure attachment of the gaff hook.
(E) Dipnet. One dipnet is required onboard. Dipnets are to be used
to facilitate safe handling of sea turtles by allowing them to be
brought onboard for fishing gear removal, without causing further
injury to the animal. Turtles must not be brought onboard without the
use of a dipnet. The minimum design standards for dipnets are as
follows:
(1) Size of dipnet. The dipnet must have a sturdy net hoop of at
least 31 inches (78.74 cm) inside diameter and a bag depth of at least
38 inches (96.52 cm) to accommodate turtles below 3 ft (0.914
m)carapace length. The bag mesh openings may not exceed 3 inches (7.62
cm) 3 inches (7.62 cm). There must be no sharp edges or burrs on the
hoop, or where it is attached to the handle.
(2) Extended reach handle. The dipnet hoop must be securely
fastened to an extended reach handle or pole with a minimum length
equal to, or greater than, 150 percent of the freeboard, or at least 6
ft (1.83 m), whichever is greater. The handle must made of a rigid
material strong enough to facilitate the sturdy attachment of the net
hoop and able to support a minimum of 100 lbs (34.1 kg) without
breaking or significant bending or distortion. It is recommended, but
not required, that the extended reach handle break down into sections.
(F) Tire. A minimum of one tire is required for supporting a turtle
in an upright orientation while it is onboard, although an assortment
of sizes is recommended to accommodate a range of turtle sizes. The
required tire must be a standard passenger vehicle tire, and must be
free of exposed steel belts.
(G) Short-handled dehooker for ingested hooks. One short-handled
device for removing ingested hooks is required onboard. This dehooker
is designed to remove ingested hooks from boated sea turtles. It can
also be used on external hooks or hooks in the front of the mouth.
Minimum design standards are as follows:
(1) Hook removal device. The hook removal device must be
constructed of 1/4-inch (6.35 mm) 316 L stainless steel, and must allow
the hook to be secured and the barb shielded without re-engaging during
the removal process. It must be no larger than 1 5/16 inch (3.33 cm)
outside diameter. It may not have any unprotected terminal points
(including blunt ones), as this could cause injury to the esophagus
during hook removal. A sliding PVC bite block must be used to protect
the beak and facilitate hook removal if the turtle bites down on the
dehooking device. The bite block should be constructed of a 3/4 -inch
(1.91 cm) inside diameter high impact plastic cylinder (e.g., Schedule
80 PVC) that is 10 inches (25.4 cm) long to allow for 5 inches (12.7
cm) of slide along the shaft. The device must be of a size appropriate
to secure the range of hook sizes and styles used in the pelagic
longline fishery targeting swordfish and tuna.
(2) Handle length. The handle should be approximately 16 - 24
inches (40.64 cm - 60.69 cm) in length, with approximately a 5-inch
(12.7 cm) long tube T-handle of approximately 1 inch (2.54 cm) in
diameter.
(H) Short-handled dehooker for external hooks. One short-handled
dehooker for external hooks is required onboard. The short-handled
dehooker for ingested hooks required to comply with paragraph
(c)(5)(i)(G) of this section will also satisfy this requirement.
Minimum design standards are as follows:
(1) Hook removal device. The dehooker must be constructed of 5/16-
inch (7.94 cm) 316 L stainless steel, and the design must be such that
a hook can be rotated out without pulling it out at an angle. The
dehooking end must be blunt, and all edges rounded. The device must be
of a size appropriate to secure the range of hook sizes and styles used
in the pelagic longline fishery targeting swordfish and tuna.
(2) Handle length. The handle should be approximately 16 - 24
inches (40.64 cm - 60.69 cm) long with approximately a 5-inch (12.7 cm)
long tube T-handle of approximately 1 inch (2.54 cm) in diameter.
(I) Long-nose or needle-nose pliers. One pair of long-nose or
needle-nose pliers is required on board. Required long-nose or needle-
nose pliers can be used to remove deeply embedded hooks from the
turtle's flesh that must be twisted during removal. They can also hold
PVC splice couplings, when used as mouth openers, in place. Minimum
design standards are as follows:
(1) General. They must be approximately 12 inches (30.48 cm) in
length, and should be constructed of stainless steel material.
(2) [Reserved]
(J) Bolt cutters. One pair of bolt cutters is required on board.
Required bolt cutters may be used to cut hooks to facilitate their
removal. They should be used to cut off the eye or barb of a hook, so
that it can safely be pushed through a sea turtle without causing
further injury. They should also be used to cut off as much of the hook
as possible, when the remainder of the hook cannot be removed. Minimum
design standards are as follows:
(1) General. They must be approximately 17 inches (43.18 cm) in
total length, with 4-inch (10.16 cm) long blades that are 2 1/4 inches
(5.72 cm) wide, when closed, and with 13-inch (33.02 cm) long handles.
Required bolt cutters must be able to cut hard metals, such as
stainless or carbon steel hooks, up to 1/4-inch (6.35 mm) diameter.
(2) [Reserved]
(K) Monofilament line cutters. One pair of monofilament line
cutters is required on board. Required monofilament line cutters must
be used to remove fishing line as close to the eye of the hook as
possible, if the hook is swallowed or cannot be removed. Minimum design
standards are as follows:
(1) General. Monofilament line cutters must be approximately 7 1/2
inches (19.05 cm) in length. The blades must be 1 in (4.45 cm) in
length and 5/8 in (1.59 cm) wide, when closed, and are recommended to
be coated with Teflon (a trademark owned by E.I. DuPont de Nemours and
Company Corp.).
(2) [Reserved]
(L) Mouth openers/mouth gags. Required mouth openers and mouth gags
are used to open sea turtle mouths, and to keep them open when removing
ingested hooks from boated turtles. They must allow access to the hook
or line without causing further injury to

[[Page 40757]]

the turtle. Design standards are included in the item descriptions. At
least two of the seven different types of mouth openers/gags described
below are required:
(1) A block of hard wood. Placed in the corner of the jaw, a block
of hard wood may be used to gag open a turtle's mouth. A smooth block
of hard wood of a type that does not splinter (e.g. maple) with rounded
edges should be sanded smooth, if necessary, and soaked in water to
soften the wood. The dimensions should be approximately 11 inches
(27.94 cm) 1 inch (2.54 cm) 1 inch (2.54 cm). A long-handled, wire shoe
brush with a wooden handle, and with the wires removed, is an
inexpensive, effective and practical mouth-opening device that meets
these requirements.
(2) A set of three canine mouth gags. Canine mouth gags are highly
recommended to hold a turtle's mouth open, because the gag locks into
an open position to allow for hands-free operation after it is in
place. A set of canine mouth gags must include one of each of the
following sizes: small (5 inches)(12.7 cm), medium (6 inches) (15.24
cm), and large (7 inches)(17.78 cm). They must be constructed of
stainless steel. A 1 -inch (4.45 cm) piece of vinyl tubing (3/4-inch
(1.91 cm) outside diameter and 5/8-inch (1.59 cm) inside diameter) must
be placed over the ends to protect the turtle's beak.
(3) A set of two sturdy dog chew bones. Placed in the corner of a
turtle's jaw, canine chew bones are used to gag open a sea turtle's
mouth. Required canine chews must be constructed of durable nylon,
zylene resin, or thermoplastic polymer, and strong enough to withstand
biting without splintering. To accommodate a variety of turtle beak
sizes, a set must include one large (5 1/2 - 8 inches(13.97 cm - 20.32
cm) in length), and one small (3 1/2 - 4 1/2 inches (8.89 cm - 11.43
cm) in length) canine chew bones.
(4) A set of two rope loops covered with hose. A set of two rope
loops covered with a piece of hose can be used as a mouth opener, and
to keep a turtle's mouth open during hook and/or line removal. A
required set consists of two 3-foot (0.91 m) lengths of poly braid rope
(3/8-inch (9.52 mm) diameter suggested), each covered with an 8-inch
(20.32 cm) section of 1/2 inch (1.27 cm) or 3/4 inch (1.91 cm) light-
duty garden hose, and each tied into a loop. The upper loop of rope
covered with hose is secured on the upper beak to give control with one
hand, and the second piece of rope covered with hose is secured on the
lower beak to give control with the user's foot.
(5) A hank of rope. Placed in the corner of a turtle's jaw, a hank
of rope can be used to gag open a sea turtle's mouth. A 6-foot (1.83 m)
lanyard of approximately 3/16-inch (4.76 mm) braided nylon rope may be
folded to create a hank, or looped bundle, of rope. Any size soft-
braided nylon rope is allowed, however it must create a hank of
approximately 2 - 4 inches (5.08 cm - 10.16 cm) in thickness.
(6) A set of four PVC splice couplings. PVC splice couplings can be
positioned inside a turtle's mouth to allow access to the back of the
mouth for hook and line removal. They are to be held in place with the
needle-nose pliers. To ensure proper fit and access, a required set
must consist of the following Schedule 40 PVC splice coupling sizes: 1
inch (2.54 cm), 1 1/4 inch (3.18 cm), 1 1/2 inch (3.81 cm), and 2
inches (5.08 cm).
(7) A large avian oral speculum. A large avian oral speculum
provides the ability to hold a turtle's mouth open and to control the
head with one hand, while removing a hook with the other hand. The
avian oral speculum must be 9-inches (22.86 cm) long, and constructed
of 3/16-inch (4.76 mm) wire diameter surgical stainless steel (Type
304). It must be covered with 8 inches (20.32 cm) of clear vinyl tubing
(5/16-inch (7.9 mm) outside diameter, 3/16-inch (4.76 mm) inside
diameter).
(ii) Handling and release requirements. (A) Sea turtle bycatch
mitigation gear, as required by paragraphs (c)(5)(i)(A) - (D) of this
section, must be used to disengage any hooked or entangled sea turtles
that cannot be brought on board. Sea turtle bycatch mitigation gear, as
required by paragraphs (c)(5)(i)(E) - (L) of this section, must be used
to facilitate access, safe handling, disentanglement, and hook removal
or hook cutting of sea turtles that can be brought on board, where
feasible. Sea turtles must be handled, and bycatch mitigation gear must
be used, in accordance with the careful release protocols and handling/
release guidelines specified in paragraph (a)(3) of this section, and
in accordance with the onboard handling and resuscitation requirements
specified in Sec. 223.206(d)(1)of this title.
(B) Boated turtles. When practicable, active and comatose sea
turtles must be brought on board, with a minimum of injury, using a
dipnet as required by paragraph (c)(5)(i)(E) of this section. All
turtles less than 3 ft (.91 m) carapace length should be boated, if sea
conditions permit.
(1) A boated turtle should be placed on a standard automobile tire,
or cushioned surface, in an upright orientation to immobilize it and
facilitate gear removal. Then, it should be determined if the hook can
be removed without causing further injury. All externally embedded
hooks should be removed, unless hook removal would result in further
injury to the turtle. No attempt to remove a hook should be made if it
has been swallowed and the insertion point is not visible, or if it is
determined that removal would result in further injury. If a hook
cannot be removed, as much line as possible should be removed from the
turtle using monofilament cutters as required by paragraph (c)(5)(i) of
this section, and the hook should be cut as close as possible to the
insertion point before releasing the turtle, using boltcutters as
required by paragraph (c)(5)(i) of this section. If a hook can be
removed, an effective technique may be to cut off either the barb, or
the eye, of the hook using bolt cutters, and then to slide the hook
out. When the hook is visible in the front of the mouth, a mouth-
opener, as required by paragraph (c)(5)(i) of this section, may
facilitate opening the turtle's mouth and a gag may facilitate keeping
the mouth open. Short-handled dehookers for ingested hooks, long-nose
pliers, or needle-nose pliers, as required by paragraph (c)(5)(i) of
this section, should be used to remove visible hooks from the mouth
that have not been swallowed on boated turtles, as appropriate. As much
gear as possible must be removed from the turtle without causing
further injury prior to its release. Refer to the careful release
protocols and handling/release guidelines required in paragraph (a)(3)
of this section, and the handling and resuscitation requirements
specified in Sec. 223.206(d)(1) of this title, for additional
information.
(2) [Reserved]
(C) Non-boated turtles. If a sea turtle is too large, or hooked in
a manner that precludes safe boating without causing further damage or
injury to the turtle, sea turtle bycatch mitigation gear required by
paragraphs (c)(5)(i)(A) - (D) of this section must be used to
disentangle sea turtles from fishing gear and disengage any hooks, or
to clip the line and remove as much line as possible from a hook that
cannot be removed, prior to releasing the turtle, in accordance with
the protocols specified in paragraph (a)(3) of this section.
(1) Non-boated turtles should be brought close to the boat and
provided with time to calm down. Then, it must be determined whether or
not the hook can be removed without causing further injury. All
externally embedded hooks must be removed, unless hook removal would
result in further injury to the

[[Page 40758]]

turtle. No attempt should be made to remove a hook if it has been
swallowed, or if it is determined that removal would result in further
injury. If the hook cannot be removed and/or if the animal is
entangled, as much line as possible must be removed prior to release,
using a line cutter as required by paragraph (c)(5)(i) of this section.
If the hook can be removed, it must be removed using a long-handled
dehooker as required by paragraph (c)(5)(i) of this section. Without
causing further injury, as much gear as possible must be removed from
the turtle prior to its release. Refer to the careful release protocols
and handling/release guidelines required in paragraph (a)(3) of this
section, and the handling and resuscitation requirements specified in
Sec. 223.206(d)(1) for additional information.
(2) [Reserved]
(iii) * * *
(C) Hook size, type, and bait. Vessels fishing outside of the NED
closed area, as defined at Sec. 635.2, that have pelagic longline gear
on board, 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,
are limited, at all times, to possessing on board and/or using only
whole finfish and/or squid bait, and the following types and sizes of
fishing hooks:
(1) 18/0 or larger circle hooks with an offset not to exceed
10[deg]; and/or,
(2) 16/0 or larger non-offset circle hooks.
(i) For purposes of paragraphs (c)(5)(iii)(C)(1), and
(c)(5)(iii)(C)(2) of this section, the outer diameter of an 18/0 circle
hook at its widest point must be no smaller than 2.16 inches (55 mm),
and the outer diameter of a 16/0 circle hook at its widest point must
be no smaller than 1.74 inches (44.3 mm), when measured with the eye of
the hook on the vertical axis (y-axis) and perpendicular to the
horizontal axis (x-axis). The distance between the hook point and the
shank (i.e., the gap) on an 18/0 circle hook must be no larger than
1.13 inches (28.8 mm), and the gap on a 16/0 circle hook must be no
larger than 1.01 inches (25.8 mm). The allowable offset is measured
from the barbed end of the hook, and is relative to the parallel plane
of the eyed-end, or shank, of the hook when laid on its side. The only
allowable offset circle hooks are those that are offset by the hook
manufacturer.
(ii) [Reserved]

0
5. In Sec. 635.23, paragraph (f)(3) is revised as follows:

Sec. 635.23 Retention limits for BFT.

* * * * *
(f) * * *
(3) For pelagic longline vessels fishing in the Northeast Distant
closed area, as defined under Sec. 635.2, under the exemption
specified at Sec. 635.21(c)(2)(v), all BFT taken incidental to fishing
for other species while in the Northeast Distant closed area may be
retained up to a maximum of 25 mt for all vessels so authorized,
notwithstanding the retention limits and target catch requirements
specified in paragraph (f)(1) of this section.
* * * * *

0
6. In Sec. 635.27, paragraph (a)(3) is revised as follows:

Sec. 635.27 Quotas.

* * * * *
(a) * * *
(3) Longline category quota. The total amount of large medium and
giant BFT that may be caught incidentally and retained, possessed, or
landed by vessels for which Longline category Atlantic tunas permits
have been issued is 8.1 percent of the overall U.S. BFT quota. In the
initial quota specifications issued under paragraph (a) of this
section, no more than 60.0 percent of the Longline category quota may
be allocated for landing in the area south of 31[deg] 00'; N. lat. In
addition, 25 mt shall be allocated for incidental catch by pelagic
longline vessels fishing in the Northeast Distant closed area, as
defined under Sec. 635.2, under the exemption specified at Sec.
635.21(c)(2)(v).
* * * * *

0
7. In Sec. 635.71, paragraph (a)(33) is revised as follows:

Sec. 635.71 Prohibitions.

* * * * *
(a) * * *
(33) Fish with or deploy any fishing gear from a vessel with
pelagic longline gear on board without carrying the required sea turtle
bycatch mitigation gear, as specified at Sec. 635.21(c)(5)(i).
* * * * *
[FR Doc. 04-15180 Filed 6-30-04; 2:43 pm]

BILLING CODE 3510-22-S