[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Proposed Rules]
[Pages 41424-41426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16939]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000622191-0191-01; I.D. 041700D]
RIN 0648-AO35


Fisheries off West Coast States and in the Western Pacific; 
Pelagics Fisheries; Measures To Reduce the Incidental Catch of Seabirds 
in the Hawaii Pelagic Longline Fishery

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes a rule under the Fishery Management Plan for the 
Pelagic Fisheries of the Western Pacific Region (FMP) that would 
require operators of vessels registered for use under Hawaii pelagic 
longline limited access permits to use two or more of six specific bird 
mitigation techniques when fishing with pelagic longline gear north of 
25 deg. N. lat.; annually attend a protected species workshop conducted 
by NMFS; and release all hooked or entangled sea birds in a manner that 
maximizes their post-release survival. This proposed rule would reduce 
fishery impacts on black-footed and Laysan albatrosses that are 
accidentally hooked or entangled and killed by Hawaii pelagic 
longliners during the setting and hauling of longline gear. This 
proposed rule would also reduce the potential for interactions between 
pelagic longline fishing vessels and endangered short-tailed 
albatrosses, which are known to occasionally visit the Northwestern 
Hawaiian Islands.

DATES: Comments on this proposed rule must be received at the 
appropriate address or fax number, (see ADDRESSES) no later than 5 
p.m., Hawaiian standard time, on August 21, 2000.

ADDRESSES: Written comments on this proposed rule must be sent to Kathy 
Cousins, NMFS Pacific Islands Area Office (PIAO), 1601 Kapiolani Blvd. 
Suite 1101, Honolulu HI 96822; or sent via facsimile (fax) to 808-973-
2941. Comments will not be accepted if submitted via e-mail or 
Internet. Copies of a background document on the proposed regulatory 
action, including an environmental assessment (EA) and initial 
regulatory flexibility analysis (IRFA), are available from Kitty 
Simonds, Executive Director, Western Pacific Fishery Management Council 
(Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813.

FOR FURTHER INFORMATION CONTACT: Kathy Cousins, 808-973-2937, fax 808-
973-2941, e-mail [email protected].

SUPPLEMENTARY INFORMATION: The Hawaii-based domestic pelagic longline 
fishery operates under a limited access regime with a maximum of 164 
transferable permits. The number of active vessels in the fishery has 
ranged from 110 to 120; in 1998, there were 114 active vessels. Data on 
Hawaii-based pelagic longline interactions with seabirds have been 
collected by NMFS observers since 1994. Estimated annual black-footed 
albatross mortalities caused by pelagic longline gear range from a 1996 
low of 1,568, to a 1994 high of 1,994; there were 1,963 mortalities 
estimated to have taken place in 1998. Laysan albatross estimated 
annual mortalities caused by pelagic longline gear range from a low in 
1996 of 1,047 to a high in 1994 of 1,828, with 1,479 mortalities 
estimated to have occurred in 1998. There have been no observed fishery 
interactions with short-tailed albatrosses, although two short-tail 
albatrosses have been sighted near Hawaii pelagic longline operations 
at sea on separate occasions. In response to concerns expressed by the 
U.S. Fish and Wildlife Service (FWS), researchers, and conservationists 
about these fishery-related impacts on albatross populations, the 
Council has proposed regulatory changes under FMP framework procedures. 
These proposed changes were developed by the Council's Pelagics Plan 
Team, Advisory Panel, and Scientific and Statistical Committee. The 
Council discussed various alternative sea bird mitigation measures at 
its June 1999 meeting and again at its October 1999 meeting, when final 
action was taken to recommend to NMFS the measures set forth in this 
proposed rule.
    The first proposed measure would require operators of vessels 
registered for use with Hawaii pelagic longline limited access permits 
to employ 2 or more of 6 specific bird take mitigation techniques when 
longlining north of 25 deg. N. lat. Individual pelagic longline vessel 
operators would choose which 2 or more of the 6 mitigation methods to 
employ based on their vessel operations and at-sea conditions. The six 
mitigation methods approved by the Council are: (1) discharge offal 
strategically from the side of the vessel opposite the gear while the 
vessel is setting or hauling pelagic longline gear; (2) begin to set 
pelagic longline gear at least 1 hour after sunset and complete the 
setting operation at least 1 hour before sunrise using only such 
lighting necessary for crew safety; (3) use only completely thawed bait 
which has been dyed blue; (4) tow a buoy or tori (bird) line, meeting 
the specifications proposed under 50 CFR 660.33(b)(4) while the 
longline gear is being set and hauled; (5) attach weights of at least 
45 grams to branch lines within 1 meter of each hook; and, (6) set the 
line using a line setting machine with weights of at least 45 grams 
attached to branch lines within 1 meter of each hook. These techniques 
have been tested individually and were found to mitigate 71 to 98 
percent of seabird interactions as compared to normal Hawaii pelagic 
longline operations.
    Two geographical management options were investigated and the 
management area (north of 25 deg. N. lat.) was selected by the Council 
because it encompasses the area with 95 percent of the fleet's annual 
average incidental seabird catch and impacts 33 percent of the average 
annual fleet effort. The second management area option (north of 
23 deg. N. lat.) was rejected because it would impact an additional 11 
percent of fishing effort without significantly reducing incidental 
seabird catch.
    A no action alternative was rejected because it would not meet the 
seabird conservation objective. A second rejected alternative would 
have required similar mitigation techniques, however, the choice of 
which 2 seabird take mitigation measures to use would have been made by 
the Council for all vessels fishing north of 25 deg. N. lat. This 
alternative would have required all pelagic longline fishing vessels to 
use seabird mitigation methods without regard to particular vessel 
operating patterns and at-sea conditions. This rejected alternative 
would likely have resulted in unduly burdensome impacts on fishing 
operations. A third rejected alternative would have prohibited longline 
fishing within the exclusive economic zone (EEZ) around Hawaii north of 
23 deg. N. lat. This alternative was rejected because it would have 
potentially reduced seabird interactions by a maximum of only 62 
percent.
    The second proposed measure would require all owners and operators 
of longline vessels holding Hawaii longline limited access permits to 
attend

[[Page 41425]]

annual protected species workshops conducted by NMFS. These workshops 
would educate Hawaii-based pelagic longline fishery participants on 
fishery impacts on populations of seabirds, sea turtles, and other 
protected resources, provide information on protected species 
identification, answer questions concerning the most effective ways to 
deploy required mitigation measures, and provide information on 
additional voluntary modifications to fishing operations to further 
minimize interactions with protected marine species. These workshops 
would also provide an ongoing forum for vessel operators to express 
their concerns and observations to NMFS concerning the incidental take 
of protected species.
    The third proposed measure would require Hawaii pelagic longline 
vessel operators to release all hooked or entangled birds in a manner 
that maximizes their chances of post-release survival. Vessel operators 
would be required to: (1) stop the vessel (to remove line tension) when 
a bird is hooked or entangled; (2) bring hooked or entangled birds on 
board using dip nets (which are required in separate regulations at 65 
FR 16436 that were published on March 28, 2000, and effective on April 
27, 2000, for retrieving incidentally caught sea turtles); (3) remove 
externally embedded hooks; and, (4) cut the line as close as possible 
to ingested hooks that cannot be safely removed.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an EA that discusses the environmental impacts 
that may result from implementation of this proposed rule. A copy of 
the EA is available from the Council (see ADDRESSES).
    NMFS prepared an IRFA that describes the economic impact that this 
proposed rule, if adopted, would have on small entities. A complete 
copy of this analysis is available from the Council (see ADDRESSES). In 
the IRFA analysis NMFS considered a variety of seabird take mitigation 
alternatives that had a range of economic impacts on HI pelagic 
longline vessel owners and operators.
    This proposed rule would potentially affect all 164 Hawaii pelagic 
longline fishery limited entry permit holders (114 of which were active 
in 1998). The proposed measures are expected to have at least a minor 
economic impact on vessel operators or owners because of the 
requirement for vessel operators to use seabird mitigation measures, 
including the requirement to carry and have ready dip nets, bolt 
cutters, pliers, and small knives. The actual economic impacts to 
individual permit holders for the entire range of proposed management 
measures is uncertain; it would depend on individual fishing vessel 
operating patterns, which seabird take mitigation measures are 
employed, and how vessel operators respond to the proposed new 
regulations. Direct costs to individual vessels for the range of 
fishery operational seabird take mitigation measures in the preferred 
alternative range from zero for night setting to $4,800 per year for 
the purchase and maintenance of towed deterrents. The non-operational 
measures (workshop attendance and careful release of live seabirds) are 
not anticipated to have significant economic impacts on fishery 
participants.
    The preferred alternative would mitigate sea bird take and minimize 
economic impacts on vessel operators by: (1) keeping all fishing areas 
open and (2) allowing vessel operators to choose which 2 seabird take 
mitigation methods to use when fishing north of 25 deg. N. lat. based 
on their individual fishing vessel operations and at-sea conditions. 
Under this alternative it is likely that those vessels that already set 
at night (primarily pelagic longline vessels targeting swordfish) would 
adopt night setting as one of their 2 required seabird mitigation 
measures, while those vessels that already use line-setting machines 
(primarily pelagic longline vessels targeting tuna) would employ line 
setters and weighted branch lines as one of their 2 required seabird 
mitigation measures. In this manner, negative economic impacts that 
result from requirements to use seabird mitigation measures would be 
avoided and impacts on vessel operations and catch rates minimized.
    There were 3 rejected alternatives. The first, a no action 
alternative, was rejected because it failed to meet the management 
objective of mitigating seabird takes in the pelagic longline fishery.
    The second rejected alternative, in which the Council would specify 
which two or more seabird take mitigation measures would be employed by 
all HI pelagic longline vessels, was rejected because it did not allow 
fishermen flexibility to choose the most effective measures based on 
individual vessel operating conditions and at-sea conditions. The 
economic impacts would vary depending on which 2 specific mitigation 
methods the Council required. Night setting would have uneven revenue 
impacts (due to changes in catch rates) depending on the type of fish 
the vessel is targeting, while the other mitigation measures have 
unpredictable revenue impacts due to a lack of data. Direct costs to 
the pelagic longline fishery for the range of mitigation measures 
considered vary from zero (night setting) to $4,800 per year for the 
purchase and maintenance of towed deterrents.
    The third rejected alternative, a prohibition on all pelagic 
longline fishing within the EEZ around Hawaii north of 23 deg. N. lat., 
was rejected because it would have reduced seabird interactions by a 
maximum of only 62 percent. The economic impact would, at maximum, be 
the ex-vessel revenue forgone resulting from the prohibition on 
longline fishing in the closed area. This is estimated to average $6.4 
million annually (1994-1998). It is likely that some of this lost 
revenue would be made up by displacement of longline effort to other 
areas; however, the result of such changes is difficult to predict or 
quantify.
    Consultation under section 7 of the Endangered Species Act (ESA) 
was initiated within NMFS for these measures to determine whether the 
effect of the proposed action on threatened and endangered sea turtles 
and marine mammals is likely to be adverse. This consultation is 
expected to conclude soon. Formal consultation under section 7 of the 
ESA between NMFS and FWS is ongoing to examine whether the fishery, as 
managed under the proposed measures, is likely to jeopardize the 
continued existence of the endangered short-tailed albatross.

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 28, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administratorfor Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be 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 Sec. 660.22, new paragraphs (ee), (ff), and (gg) are added to 
read as follows:

[[Page 41426]]

Sec. 660.22  Prohibitions.

* * * * *
    (ee) Fish for Pacific pelagic management unit species using pelagic 
longline gear with a vessel registered for use under a Hawaii pelagic 
longline limited access permit north of 25 deg. N. lat. without 
employing two or more of the seabird mitigation measures described in 
Sec. 660.33(b).
    (ff) Fail to release seabirds that are caught by pelagic longline 
gear in a manner that maximizes their long-term survival as described 
in Sec. 660.33(a).
    (gg) Operate a vessel used to fish for Pacific pelagic management 
unit species using pelagic longline gear with a vessel registered for 
use under a Hawaii pelagic longline limited access permit after 
September 30, 2000, without a certificate showing completion of a NMFS 
workshop on protected species as described in Sec. 660.34.
    3. A new Sec. 660.33 is added to subpart C to read as follows:


Sec. 660.33  Pelagic longline seabird mitigation measures.

    The operator of a vessel registered for use under a Hawaii pelagic 
longline limited access permit and engaged in fishing for Pacific 
pelagic management unit species using pelagic longline gear north of 
25 deg. N. lat. must:
    (a) Release seabirds that are caught by pelagic longline gear in a 
manner that maximizes their long-term survival. The vessel operator 
must have on board the vessel a long-handled dip net, bolt cutters, 
pliers, and a knife. If a seabird is hooked, the operator must stop the 
vessel to reduce the tension on the line and bring the seabird on board 
the vessel using a dip net. Vessel crew must work in pairs to remove 
hooks from seabirds. The vessel operator must ensure that hooks are not 
removed backward, as this will cause further damage to the seabird. The 
vessel operator must ensure that the line is cut as close as possible 
to the hook, that the hook barb is pushed out point first through a 
small knife incision and then cut off using bolt cutters, and that the 
hook shank is removed. If an ingested hook is in the bird's stomach and 
cannot be removed, the vessel operator must ensure that the line is cut 
as close as possible to the hook. After removing entangled lines or 
hooks from seabirds, the vessel operator must ensure that the birds are 
left to recover on board the vessel for a short period before being 
released; and
    (b) Use at least two of the following six seabird mitigation 
methods:
    (1) Discharge offal strategically. While pelagic longline gear is 
being set or hauled, fish, fish parts, or bait must be discharged on 
the opposite side of the vessel from where the longline is being set or 
hauled. Sufficient quantities of offal must be retained between sets 
for this purpose;
    (2) Night setting. Begin setting pelagic longline gear at least 1 
hour after local sunset and complete the setting process at least 1 
hour before local sunrise, utilizing only enough deck lighting to 
ensure safety;
    (3) Blue-dyed bait. Thaw, and dye blue, all bait used. The color 
intensity of the blue-dyed bait must conform to a level specified by a 
color quality control card issued by NMFS;
    (4) Towed deterrent. While setting and hauling the gear, employ a 
tori (bird) line or towed buoy that meets the specifications of this 
paragraph. The point of attachment between the tori line, or towing 
line for the towed buoy, and the towing pole to which it is attached 
must be 4 to 8 m above the sea surface. The tori line or towing line 
for the towed buoy must be constructed of material that is between 5 mm 
and 8 mm in diameter. The tori line must be a minimum of 150 m in 
length and be weighted at the end so that it streams directly over the 
pelagic longline gear, even in cross winds. If a towed buoy is used, it 
must be an inflatable type rubber buoy at least 50 in. (127 cm) in 
circumference. The buoy must be attached to the towing pole by a line 
which is at least 175 ft (53.3 m) long, and must be towed to maintain a 
distance of approximately 150 ft (45.7 m) behind the vessel during 
setting and approximately 90 ft (27.4 m) during hauling operations. For 
both types of deterrents, swivels must be placed every 20 m along the 
line to reduce twisting. A total of 7-10 pairs of streamers must be 
attached to the line at 5 m intervals beginning 10 m from the point of 
attachment to the towing pole. The streamers must be made of a heavy, 
flexible material which allows them to move freely and be attached to 
the line using three-way swivels or adjustable snaps. The tori line, or 
towing line for the buoy, must be attached to a towing pole at the 
stern of the vessel that is positioned such that it is directly above 
the baited hooks as they are deployed or hauled back. The streamers 
must be constructed and deployed in a manner such that they each skim 
the water's surface in the area where the gear is being set and hauled;
    (5) Weighted branch lines. Attach a weight of at least 45 g to each 
branch line within 1 m of each hook; or
    (6) Line-setting machine with weighted branch lines. Set the 
mainline using a line-setting machine (e.g. Lindgren-Pitman model LS-4) 
operating at least 1.3 times the average setting speed of the vessel. A 
weight of at least 45 g must be attached to each branch line within 1 m 
of the hook.
    4. A new Sec. 660.34 is added to subpart C to read as follows:


Sec. 660.34  Annual protected species workshops.

    The owner and operator of a vessel registered for use under a 
Hawaii pelagic longline limited access permit and engaged in fishing 
for Pacific pelagic management unit species using pelagic longline gear 
must annually attend a NMFS workshop on protected species and receive a 
protected species workshop certificate before commencing fishing each 
fishing season. For the years 2000 and 2001, all vessel owners and 
operators must have attended a protected species workshop by September 
30, 2000. The vessel owner must ensure the vessel operator is 
certified. An owner or operator must maintain proficiency sufficient to 
perform the procedures required by relevant protected species 
regulations of NMFS, and must attend and satisfactorily complete a 
formal training session approved by the Administrator of PIAO, in order 
to obtain his or her protected species workshop certificate. Owners and 
operators may be required to attend additional formal training sessions 
if there are substantial changes in the fishery, fishing gear, or 
mitigation techniques. Additional training may be required for any 
owner or operator who is found by the Administrator of PIAO, to lack 
proficiency in the application of mitigation techniques presented at 
the workshop. NMFS may waive the requirement to attend these workshops 
by notice to all vessel owners and operators.
[FR Doc. 00-16939 Filed 7-3-00; 8:45 am]
BILLING CODE 3510-22-F