01-14625. Fisheries off West Coast States and in the Western Pacific; Western Pacific Pelagics Fisheries; Hawaii-based Pelagic Longline Restrictions and Seasonal Area Closure, and Sea Turtle and Sea Bird Mitigation Measures

AGENCY:

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

ACTION:

Emergency interim rule; notification of restrictions; request for comments.

SUMMARY:

NMFS issues an emergency interim rule, effective for 180 days, applicable to vessels registered for use under a Hawaii longline limited access permit (Hawaii longline vessel). This rule: Prohibits the targeting of swordfish north of the equator by Hawaii longline vessels; prohibits longline fishing by Hawaii longline vessels in waters south of the Hawaiian Islands (from 15° N. lat. to the equator, and from 145° W. long. to 180° long.) during the months of April and May; allows re-registration of vessels to Hawaii longline limited access permits only in October; imposes additional sea turtle handling and resuscitation measures; and requires all Hawaii longline vessel operators to attend an annual protected species workshop. This rule implements an Order issued on March 30, 2001, by the United States District Court for the District of Hawaii (Court). This Order superseded the Court’s Order of August 4, 2000, and this rule supersedes the emergency rules published on August 25, 2000; November 3, 2000; February 22, 2001; and March 19, 2001. Other parts of this emergency interim rule implement the terms and conditions contained in a November 28, 2000, Biological Opinion (BO) issued by the U.S. Fish and Wildlife Service (FWS) on the effects of the Hawaii-based longline fishery (Hawaii longline fishery) on the endangered short-tailed albatross.

DATES:

This emergency interim rule is effective June 12, 2001, through December 10, 2001. Comments must be received no later than 5 p.m., Hawaiian standard time, on July 27, 2001.

ADDRESSES:

Written comments on this action must be mailed to Dr. Charles Karnella, Administrator, NMFS, Pacific Islands Area Office (PIAO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI, 96814-4700; or faxed to 808-973-2941. Comments will not be accepted if submitted via e-mail or the Internet. Copies of the final Environmental Impact Statement (FEIS) and Regulatory Impact Reviews (RIRs) prepared for this action, and the BO may be obtained from Dr. Charles Karnella, PIAO. See also http://swr.nmfs.noaa.gov to view the EIS.

FOR FURTHER INFORMATION CONTACT:

Alvin Katekaru, PIAO, at 808-973-2937.

SUPPLEMENTARY INFORMATION:

On August 4, 2000, the Court issued an Order in Center for Marine Conservation (CMC) v. NMFS, directing NMFS to complete a FEIS that assesses the environmental impacts of fishing activities conducted under the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region (FMP) by April 1, 2001. On March 30, 2001, NMFS filed that FEIS with the U.S. Environmental Protection Agency. That FEIS provides a comprehensive assessment of these fisheries and their impacts on the human environment. The FEIS contains a description and analysis of the preferred alternative which includes, among other things, a series of actions to protect and conserve sea turtles. These measures conform with a BO that NMFS issued on March 29, 2001, which analyzes the effects of the Hawaii longline fishing fleet on sea turtles under the Endangered Species Act (ESA). After receiving the FEIS, on March 30, 2001, the Court issued an Order Modifying Injunction (March 30 Order) that superseded the Court’s Order of August 4, 2000. Background information on actions to implement the August 4, 2000, Order and earlier Orders in CMC v. NMFS is not repeated here; this information was published in numerous previous Federal Register documents (64 FR 72290, December 27, 1999; 65 FR 16346, March 28, 2000; 65 FR 37917, June 19, 2000; 65 FR 51992, August 25, 2000; 65 FR 66186, November 3, 2000; 66 FR 1110, February 22, 2001; and 66 FR 15358, March 19, 2001).

The March 30, 2001, Order made effective immediately those aspects of the preferred alternative in the FEIS that are intended to mitigate the Hawaii longline fishery interactions with sea turtles. This emergency interim rule codifies that Order in 50 CFR part 660 under the authority of section 305 (c) of the Magnuson-Stevenson Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1855 (c).

In summary, the turtle mitigation components of this rule: (a) Prohibit Hawaii longline vessels from using longline gear to target swordfish north of the equator; (b) require Hawaii longline vessels to deploy longline gear such that the “sag” (deepest point) between any two floats is at least 100 m (328.1 ft) beneath the sea surface and the float line suspending the main longline beneath a float is at least 20 m (65.6 ft or 10.9 fm) long, with a minimum of 15 branch lines deployed between any 2 floats; (c) prohibit possession of light sticks on board a Hawaii longline vessel; (d) prohibit Hawaii longline vessels from fishing with longline gear during the months of May and April, (significant only if this rule were extended for an additional 180-day period) in the area bounded on the south by the equator, on the west by 180° long., on the east by 145° W. long., and on the north by 15° N. lat.; (e) allow the re-registration of a Hawaii longline vessel that has been de-registered from a Hawaii longline limited access permit after March 29, 2001, only during the month of October; (f) require Hawaii longline vessel operators to annually attend a protected species workshop conducted by NMFS; (g) require Hawaii longline vessel operators to cease gear retrieval if a sea turtle is discovered hooked or entangled on a longline until the turtle has been removed from the gear or brought onto the vessel’s deck; (h) require that hooks be removed from sea turtles as quickly and carefully as possible; however, if a hook cannot be removed, that the line be cut as close to the hook as possible; (i) require that wire or bolt cutters capable of cutting through a longline hook be on board the vessel to facilitate cutting of hooks imbedded in sea turtles; and (j) require the vessel operator to bring comatose sea turtles on board the vessel and to perform resuscitation on such turtles as prescribed in 50 CFR 223.206 (d)(1).

In order to ensure that longline vessels deploy gear relatively deeply (the ordinary method of fishing for tuna), the emergency rule published by NMFS on November 3, 2000, required the deepest point (sag) between any two floats to be at least 100 m beneath the ocean surface. Although the sag depth itself is not easily monitored by enforcement officials, NMFS is continuing that requirement in this emergency interim rule because it is required by explicit wording of the March 30, 2001, Order. Additionally, to help with enforcement, this emergency interim rule, at 50 CFR §§ 660.34 (b) and 660.34(g), also requires that each float line suspending the main longline beneath a float be at least 20 m long. This restriction is intended to better ensure that the longlines are deployed relatively deeply in the water column. If the float lines are at least 20 m long, then the sag between any two floats should remain at least 100 m beneath the ocean surface. In addition, this rule requires a minimum of 15 branch lines to be set between any 2 floats. This is consistent with the ordinary method of fishing for tuna, which entails using far more branch lines, at greater depths, than the ordinary method of fishing for swordfish. This requirement can also be monitored by at-sea enforcement officials. NMFS anticipates that by regulating the length of the float lines, as well as the number of branch lines deployed per float, it will be easier for both fishermen to control, and enforcement officials to monitor, the depth of the main longline, and the species that are being targeted.

The March 30, 2001, Order, directs NMFS to require Hawaii longline vessel operators to record, in writing, each swordfish caught, and to submit this report to NMFS within 5 days of returning to port (see paragraph 1 of the Order). This directive does not require further regulation since an existing regulation requires vessel operators to submit to NMFS, within 3 days of landing, written reports (logbooks) of any swordfish incidentally caught in the fishery (50 CFR 660.14). The March 30, 2001, Order also included two non-regulatory requirements: (1) That NMFS maintain an annual average of at least 20-percent observer coverage in this fishery; and (2) that NMFS train those observers in sea turtle biology and resuscitation techniques.

The second aspect of this emergency interim rule implements the terms and conditions of the BO issued by the FWS on November 28, 2000. The terms and conditions in the BO are based on a suite of seabird mitigation measures developed by the Western Pacific Fishery Management Council. As a part of the review process for these measures, NMFS entered into formal consultation with the FWS under section 7 of the ESA. Under the terms and conditions of the BO, operators and crew of Hawaii longline vessels operating with longline gear north of 23° N. must: (1) Use thawed blue-dyed bait and strategic offal discards in a manner approved by NMFS to distract birds during the setting and hauling of longline gear; and (2) when making tuna target sets (the only type of set allowed under this rule north of the equator), employ a line setting machine with weights (minimum weight = 45 g) attached to each branch line within 1 m of the hook. In addition, the crew on a Hawaii longline vessel operating anywhere at sea must follow certain handling techniques to increase the likelihood that short-tailed albatrosses that are incidentally taken are brought aboard alive and handled in a manner that ensures their long-term survival. If a short-tailed albatross is brought aboard a vessel, the vessel operator must determine if it exhibits the following traits: Head is held erect and the bird responds to noise and motion stimuli; bird breathes without noise; both wings can flap and retract to normal folded position on back; and the bird can stand on both feet with toes pointed forward. If a short-tailed albatross fails to exhibit even one of these traits, the vessel operator must contact NMFS immediately. In addition, any short-tailed albatross recovered dead must be frozen immediately and surrendered as soon as possible to NMFS. The BO also requires all Hawaii longline vessel operators to attend annually a protected species workshop. The BO also contains seabird take mitigation measures for longline fishing targeting swordfish north of 23° N. lat.; however, these become moot because under this emergency interim rule, targeting swordfish north of 23° N. lat. is prohibited.

Criteria for Issuing an Emergency Interim Rule

This emergency interim rule meets NMFS policy guidelines for the use of emergency interim rules (64 FR 44421, August 21, 1997). Also, it realizes benefits that outweigh the value of prior notice, opportunity for public comment, and deliberative consideration expected under the normal rulemaking process.

Recent, Unforeseen Events or Recently Discovered Circumstances

The March 30, 2001, Order included discussion of regulatory implementation of the measures to reduce adverse impacts on sea turtles. NMFS is publishing this emergency interim rule in order to temporarily protect sea turtles while permanent measures can be imposed through the normal notice and comment rulemaking process. Emergency action is also required to comply with the terms and conditions of the BO issued on November 28, 2000, by the FWS.

Immediate Benefits

Although there are many variables that make it difficult to predict the effects of this fishery upon different sea turtle and seabird populations, NMFS anticipates this rule will benefit these species by reducing overall fishing effort, restricting the use of gear shown to have higher interaction rates with sea turtles and seabirds, and mitigating the effects of hooking or entanglements of animals that encounter longline fishing gear.

Classification

The Assistant Administrator for Fisheries, NOAA (AA) has determined that this emergency interim rule is necessary to comply with an Order of the U.S. District Court for the District of Hawaii, and the mandatory terms and conditions of a BO issued under section 7 of the ESA. The AA has also determined that this emergency rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This emergency interim rule has been determined to be not significant for the purposes of Executive Order 12866.

NMFS prepared an EIS for the FMP that describes the impact on the human environment of fishing under this rule. NMFS also prepared two RIRs, covering different parts of this action, which assess the net national benefits of protecting both sea turtles and seabirds. This emergency interim rule is of limited duration and is expected to result in a reduction in sea turtle and seabird interactions and mortalities caused by the Hawaii longline fishery. The Hawaii longline fishery averaged annual ex-vessel gross revenues of $40.7 million between 1994-1998. Under the assumption that fishing effort that is displaced as a result of the area and gear restrictions is transferred into allowable effort in open areas, the anticipated annual loss of ex-vessel gross fishery revenues is estimated to be 11 percent ($4.3 million). At the other end of the extreme is a scenario in which all displaced effort is totally removed from the fishery, resulting in an estimated annual decline of 42 percent ($17.2 million) in ex-vessel revenues. Economic impacts of these measures, which are of limited duration, cannot be precisely estimated due to a lack of data but are expected to be less than the higher end of the above range. Copies of the EIS and RIRs are available (see ADDRESSES).

The AA finds that this emergency interim rule, which is being implemented under section 305 (c) of the Magnuson-Stevens Act, is needed to respond to an Order of the Court and to implement in a timely manner the terms and conditions of the BO on short-tailed albatross. Under section 305 (c) of the Magnuson-Stevens Act, this emergency interim rule may remain in effect for not more than 180 days after the date this rule is published, unless extended for one additional period of not more than 180 days. If the rule is extended for 180 days, it would close all longline fishing to Hawaii longline vessels for April and most of May 2002 in waters bounded on the south by the equator, on the west by 180° long., on the east by 145° W. long., and on the north by 15° N. lat.

The AA finds for good cause that providing prior notice and opportunity for public comment is unnecessary because this action implements a Court Order and mandatory terms and conditions of a BO, authorized under the ESA, thus precluding implementation of any alternative. Similarly, the AA finds, for good cause, under 5 U.S.C. 553 (d)(3), that delaying the effectiveness of this rule for 30 days is impracticable given the explicit directive from the Court and the mandatory requirements of the FWS’s BO. Accordingly, the AA is making this emergency interim rule effective upon publication in the Federal Register.

Because this emergency interim rule is not required to be published with notice and opportunity for public comment by 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act do not apply.

List of Subjects in 50 CFR Part 660

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

Dated: June 6, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

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

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

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

2. In § 660.21, new paragraph (l) is added to read as follows:

§ 660.21

Permits.

* * * * *

(l) Except during October, NMFS will not register with a Hawaii longline limited access permit any vessel that is de-registered from a Hawaii longline limited access permit after March 29, 2001.

3. In § 660.22, paragraphs (ee) through (ll) are suspended and new paragraphs (mm) through (tt) are added to read as follows:

§ 660.22

Prohibitions.

* * * * *

(mm) Direct fishing effort toward the harvest of swordfish (Xiphias gladius) using longline gear deployed by a vessel registered for use under a Hawaii longline limited access permit in violation of § 660.34(a).

(nn) Fish for Pacific pelagic management unit species with a vessel registered for use under a Hawaii longline limited access permit in violation of § 660.34 (b), (c), (g), or (h).

(oo) Use a receiving vessel registered for use under a receiving vessel permit to receive from another vessel Pacific pelagic management unit species harvested with longline gear in violation of § 660.34 (d).

(pp) Land or transship shoreward of the outer boundary of the EEZ around Hawaii Pacific pelagic management unit species that were harvested with longline gear in violation of § 660.34 (e).

(qq) Possess a light stick on board a vessel registered for use under a Hawaii longline limited access permit in violation of § 660.34 (f).

(rr) Fail to comply with seabird take mitigation or handling techniques required under § 660.35 (a) and (b).

(ss) Fish for Pacific pelagic management unit species with a vessel registered for use under a Hawaii longline limited access permit without being certified by NMFS for completion of an annual protected species workshop as required under § 660.36.

(tt) Fail to comply with sea turtle handling and resuscitation requirements specified in § 660.32 (e) when operating a vessel registered for use under a Hawaii longline limited access permit.

§ 660.23

[Amended]

4. In § 660.23, the suspension of paragraph (a) is lifted and paragraph (c) is suspended.

§ 660.28

[Amended]

5. In § 660.28, the suspension of paragraph (c) is lifted.

6. In § 660.32, new paragraphs (a) (3), (b) (4), (b) (5), and (e) are added to read as follows:

§ 660.32

Sea turtle take mitigation measures.

(a) * * *

(3) Each vessel must have on board a wire or bolt cutter capable of cutting through a longline hook to facilitate hook removal from a sea turtle.

(b) * * *

(4) If a sea turtle is observed to be hooked or entangled by longline gear during hauling operations, the vessel operator must immediately cease hauling operations until the turtle has been removed from the longline gear or brought on board the vessel.

(5) Hooks must be removed from sea turtles as quickly and carefully as possible. If a hook cannot be removed from a turtle, the line must be cut as close to the hook as possible.

* * * * *

(e) In addition to the requirements in paragraphs (b) and (c) of this section, a vessel operator shall perform sea turtle handling and resuscitation techniques consistent with § 223.206 (d)(1) of this title, as appropriate.

§ 660.33

[Amended]

7. Section 660.33 is suspended.

8. New § 660.34 is added to subpart C to read as follows:

§ 660.34

Hawaii emergency longline fishing restrictions.

(a) A vessel registered for use under a Hawaii longline access permit may not use longline gear to fish for or target swordfish (Xiphias gladius) north of the equator (0° lat.).

(b) The length of each float line used to suspend the main longline beneath a float must be longer than 20 m (65.6 ft or 10.9 fm) if deployed by, or possessed on, a vessel registered for use under a Hawaii longline access permit, fishing for Pacific pelagic management unit species.

(c) From April 1 through May 31, a vessel registered for use under a Hawaii longline limited access permit may not use longline gear in waters bounded on the south by 0° lat., on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long. (see Figure 3 to this section).

(d) From April 1 through May 31, a vessel registered for use under a receiving vessel permit may not receive from another vessel Pacific pelagic management unit species that were harvested by longline gear in waters bounded on the south by 0° lat., on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long. (see Figure 3 to this section).

(e) From April 1 through May 31, a vessel registered for use under a Hawaii longline limited access permit or receiving vessel permit, may not land or transship Pacific pelagic management unit species that were harvested by longline gear in waters bounded on the south by 0° latitude, on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long. (see Figure 3 to this section).

(f) During a fishing trip, no light stick may be possessed on board a vessel registered for use under a Hawaii longline limited access permit.

(g) When a longline is deployed in the water by a vessel registered for use under a Hawaii longline limited access permit, no fewer than 15 branch lines may be set between any two floats.

(h) Longline gear deployed by a vessel registered for use under a Hawaii longline limited access permit must be deployed such that the deepest point of the main longline between any two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the sea surface.

9. Figure 3 to § 660.34 is added to read as follows:

Figure 3 to § 660.34—Hawaii Emergency Longline Restrictions & Seabird Take Mitigation Measures

10. New § 660.35 is added to subpart C to read as follows:

§ 660.35

Seabird take mitigation measures.

(a) Mitigation techniques. While on a trip using longline gear to fish for Pacific pelagic management unit species north of 23° N. lat., a vessel registered for use under a Hawaii longline limited access permit must:

(1) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb size) containing blue dye on board the vessel during a fishing trip;

(2) Use completely thawed bait to fish for Pacific pelagic management unit species;

(3) Use only bait that is dyed blue of an intensity level specified by a color quality control card issued by NMFS;

(4) Retain sufficient quantities of offal, between the setting of longline gear for the purpose of discharging the offal strategically in a manner described in paragraph (a) (6) of this section;

(5) Remove all hooks from offal prior to discharging the offal in a manner described in paragraph (a) (6) of this section;

(6) Discharge fish, fish parts (i.e., offal), or spent bait while setting or hauling longline gear on the opposite side of the vessel from where the longline is being set or hauled;

(7) Use a line-setting machine or line-shooter to set the main longline;

(8) Attach a weight of at least 45 g to each branch line within 1 m of the hook; and

(9) Remove the bill and liver of any swordfish that is incidentally caught, sever its head from the trunk and cut it in half vertically; and periodically discharge the butchered heads and livers overboard on the opposite side of the vessel from which the longline is being set or hauled.

(b) Seabird handling techniques. If a short-tailed albatross (Phoebastria albatrus) is incidentally taken anywhere at-sea by a vessel registered for use under a Hawaii longline limited access permit:

(1) The hooked or entangled bird must be brought on board the vessel.

(2) The vessel operator must observe whether the bird is:

(i) Holding its head erect and responding to noise and motion stimuli;

(ii) Breathing without noise;

(iii) Capable of flapping and retracting both wings to normal folded position on its back; and

(iv) Standing on both feet with toes pointed forward.

(3) If the short-tailed albatross exhibits all of the traits described in paragraph (b) (2) of this section, the vessel operator must release the bird after it is dry.

(4) If the short-tailed albatross fails to exhibit all of the traits described in paragraph (b) (2) of this section, the vessel operator must contact NMFS immediately.

(5) A short-tailed albatross that is brought on board the vessel dead must be frozen immediately, with identification tags attached directly to the specimen, and a duplicate identification tag attached to the bag or container holding the specimen. Leg bands, if attached, must not be removed from the specimen, and the specimen must be submitted to NMFS within 72 hours following completion of the fishing trip.

11. New § 660.36 is added to subpart C to read as follows:

§ 660.36

Protected species workshop.

(a) Each year the operator of a vessel registered for use under a Hawaii longline limited access permit must attend and be certified for completion of a workshop conducted by NMFS on mitigation, handling, and release techniques of turtles and seabirds and other protected species.

(b) A protected species workshop certificate or other proof of completion of a protected species workshop will be issued by NMFS annually to a vessel operator who has completed the workshop.

(c) An operator of a vessel registered for use under Hawaii longline limited access permit must have on board the vessel while engaged in longline fishing a valid protected species workshop certificate or copy issued by NMFS.

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