[Federal Register Volume 66, Number 36 (Thursday, February 22, 2001)]
[Rules and Regulations]
[Pages 11120-11123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4492]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000822244-01; I.D. 082100B]
RIN 0648-AO66


Fisheries Off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; Hawaii-based Pelagic Longline Area 
Closure

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

ACTION: Emergency interim rule; extension of expiration date.

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SUMMARY: This action extends an emergency interim rule, now in effect, 
governing the Hawaii-based pelagic longline fishery. The rule closes 
certain waters to fishing; imposes fishing gear, landing and 
transhipment restrictions, effort limitations, and fish sale 
restrictions; and requires increased observer coverage for the fishery. 
By extending the emergency interim rule that is effective through 
February 21, 2001, NMFS continues implementation of an order issued by 
the U.S. District Court for the District of Hawaii while an 
environmental impact statement (EIS) is being completed for the Fishery 
Management Plan for Pelagic Fisheries of the Western Pacific Region 
(FMP).

DATES: This emergency interim rule is effective from February 22, 2001, 
through August 20, 2001.

ADDRESSES: Copies of the environmental assessment prepared for the 
emergency interim rule may be obtained from Dr. Charles Karnella, 
Administrator, Pacific Islands Area Office (PIAO), NMFS, 1601 Kapiolani 
Blvd., Suite 1110, Honolulu, HI, 96814-4700.

FOR FURTHER INFORMATION CONTACT: Alvin Katekaru, PIAO, 808-973-2937.

SUPPLEMENTARY INFORMATION: On August 4, 2000, the U.S. District Court 
for the District of Hawaii, in the case Center for Marine Conservation 
v. NMFS, issued an Order Further Modifying Provisions of Order of 
Injunction that was implemented by NMFS by an emergency interim rule 
promulgated on August 25, 2000 (65 FR 51992, August 25, 2000). As 
intended by the order, the emergency interim rule reduces adverse 
impacts to sea turtles by the Hawaii-based longline fishery while NMFS 
prepares an EIS that analyzes the environmental effects of fishing 
activities conducted under the FMP. The EIS is scheduled for completion 
by April 1, 2001.
    The emergency interim rule, which was revised on November 3, 2000 
(65 FR 66186, November 3, 2000), prohibits vessels registered for use 
with Hawaii longline limited access permits from fishing activities 
throughout the year in waters between 28 deg. N. and 44 deg. N. lat., 
from 150 deg. W. to 168 deg. W. long. (``Area A''); limits vessels 
registered for use with Hawaii longline limited access permits to a 
total of 154 sets from August 10 through December 31, 2000, and a total 
of 77 sets from January 1 through March 14, 2001, and requires 100-
percent observer coverage for these vessels in waters between 28 deg. 
N. and 44 deg. N. lat., from 137 deg. W. to 150 deg. W. long., and in 
waters between 28 deg. N. and 44 deg. N. lat., from 168 deg. W. to 
173 deg. E. long. (both areas collectively designated ``Area B''). The 
rule also prohibits Hawaii-based longliners operating in waters between 
0 deg. lat. (equator) and 28 deg. N. lat., from 137 deg. W. and 
173 deg. E. long. (``Area C'') from engaging in directed fishing effort 
for swordfish; requires deployment of longline gear so that the deepest 
point of the longline between any two floats reaches a depth greater 
than 100 m (328.1 ft) below the sea surface; requires permit holders or 
operators to donate to charity at least 30 percent of their gross 
revenues from the sale of incidentally caught swordfish from Area C; 
and prohibits longline vessels from possessing lightsticks aboard the 
vessels if fishing occurs in any portion of Area C.
    Further, pursuant to the Court's Order, NMFS provided observer 
coverage for the Hawaii longline fishery in Area C at a minimum level 
of 10 percent by September 21, 2000, and increased the level to 20 
percent before November 7, 2000. To ensure these levels of coverage, 
this rule requires any Hawaii-based longline vessel that NMFS has 
exempted from carrying NMFS-approved observers in Area C for a specific 
fishing trip to have aboard the vessel a valid observer waiver form 
issued by NMFS. For Areas B and C, longline fishing activities are 
prohibited from March 15 through May 3. During the closure, Pacific 
pelagic management unit species harvested in Areas B and C (all year in 
Area A) are prohibited from being landed or transhipped to Hawaii.
    This extension of the emergency interim rule implements the Court's 
order for an additional 180 days until August 20, 2001, unless prior to 
that expiration date, NMFS completes the environmental impact statement 
for the FMP and the Court lifts the injunction contained in its Order 
dated August 4, 2000. Although NMFS has reorganized the sequence of 
several paragraphs in Secs. 660.22 and 660.33(d) and (e), this 
emergency interim rule is substantively identical to the emergency 
interim rule published August 25, 2000, as amended by the rule 
published on November 3, 2000.
     Extension of this emergency interim rule is authorized under 
section 305(c)(3)(B) of the Magnuson-Stevens Fishery Conservation and 
Management Act.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that extension of the emergency interim rule is necessary to 
comply with a valid order of the U.S. District Court.
    The AA finds for good cause that providing prior notice and 
opportunity for public comment for this rule is unnecessary given that 
the Court ordered the specific actions contained in this rule, thus 
precluding implementation of any alternative, and is impracticable 
given the Court's deadline. 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 Court's deadline. Accordingly, 
the AA is making this rule effective from February 22, 2001, through 
August 20, 2001.
    This emergency interim rule has been determined to be not 
significant for purposes of Executive Order 12866.

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.

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


[[Page 11121]]


    Dated: February 20, 2001.
Clarence G. Pautzke,
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 Sec. 660.22, paragraphs (z), (aa), and (bb) are suspended, 
and new paragraphs (ee) through (ll) are added to read as follows:


Sec. 660.22  Prohibitions.

* * * * *
    (ee) Fish for Pacific pelagic management unit species with a vessel 
registered for use under a Hawaii longline limited access permit using 
longline gear within the Hawaii emergency closed areas in violation of 
Sec. 660.33(b)(1), (c)(1), (c)(4), (c)(5), or (d)(1).
    (ff) 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, if the fish were harvested 
or the transfer occurs within the Hawaii emergency closed areas in 
violation of Sec. 660.33(b)(2), (c)(2), or (d)(2).
    (gg) Land or transship shoreward of the outer boundary of the EEZ 
around Hawaii Pacific pelagic management species that were harvested 
with longline gear within the Hawaii emergency closed areas in 
violation of Sec. 660.33(b)(3), (c)(3), or (d)(3).
    (hh) Land or sell swordfish (Xiphias gladius) caught by longline 
gear within the Hawaii emergency longline closed Area C in violation of 
Sec. 660.33(d)(5).
    (ii) Use longline gear to fish for Pacific pelagic management unit 
species in Hawaii emergency longline closed Area B or Area C without a 
NMFS-approved observer on board the vessel in violation of 
Sec. 660.33(e)(1) or (e)(2).
    (jj) Possess light sticks on a longline vessel within the Hawaii 
emergency longline closed Area C in violation of Sec. 660.33(d)(6).
    (kk) Fail to carry onboard the vessel or to make available for 
inspection by an authorized officer an observer waiver form issued by 
the Administrator, Pacific Islands Area Office, NMFS, or a designee of 
the Administrator as required under Sec. 660.33(e)(2).
    (ll) Direct longline fishing effort toward the harvest of swordfish 
in Hawaii emergency longline closed Area C.

    3. In Sec. 660.23, paragraph (a) is suspended and new paragraph (c) 
is added to read as follows:


Sec. 660.23   Notifications.

* * * * *
    (c) The permit holder of a vessel registered for use with a Hawaii 
longline limited access permit or with an agent designated by the 
permit holder shall provide notice to the Regional Administrator at 
least 72 hours (not including weekends and holidays) before the vessel 
leaves port on a fishing trip, any part of which occurs in Area B or 
Area C, as described in Sec. 660.33(a)(2) or (a)(3). The vessel 
operator will be presumed to be an agent designated by the permit 
holder unless the Regional Administrator is otherwise notified by the 
permit holder. The notice must be provided to the telephone number 
designated by the Regional Administrator. The notice must provide the 
official number of the vessel, the name of the vessel, the intended 
departure date, time, and location, the name of and telephone number of 
the agent designated by the permit holder to be available between 8:00 
a.m. to 5 p.m. (Hawaii time) on weekdays for NMFS to contact in order 
to arrange observer placement.


Sec. 660.28   [Amended]

    4. In Sec. 660.28, paragraph (c) is suspended.

    5. New Sec. 660.33 is added to subpart C to read as follows:


Sec. 660.33   Hawaii emergency closure.

    (a) Longline fishing restricted areas. (1) ``Area A'', as used in 
this section, is defined as all waters bounded on the south by 28 deg. 
N. lat., on the north by 44 deg. N. lat., on the east by 150 deg. W. 
long., and on the west by 168 deg. W. long. (see Figure 2 to this 
section).
    (2) ``Area B'', as used in this section, is defined as all waters 
bounded on the south by 28 deg. N. lat., on the north by 44 deg. N. 
lat., on the east by 137 deg. W. long., and on the west by 150 deg. W. 
long; and all waters bounded on the south by 28 deg. N. lat., on the 
north by 44 deg. N. lat., on the east by 168 deg. W. long., and on the 
west by 173 deg. E. long. (see Figure 2 to this section).
    (3) ``Area C'', as used in this section, is defined as all waters 
bounded on the south by 0 deg. latitude, on the north by 28 deg. N. 
lat., on the east by 137 deg. W. long., and on the west by 173 deg. E. 
long. (see Figure 2 to this section).
    (b) Longline fishing restrictions in Area A. (1) A vessel 
registered for use under a Hawaii longline limited access permit may 
not use longline gear to fish for Pacific pelagic management unit 
species in Area A.
    (2) A vessel registered for use under a receiving vessel permit may 
not receive from another vessel Pacific pelagic management unit species 
in Area A.
    (3) 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 with 
longline gear in Area A shoreward of the outer boundary of the EEZ 
surrounding Hawaii.
    (c) Longline fishing restrictions in Area B. (1) A vessel 
registered for use under a Hawaii longline limited access permit may 
not use longline gear to fish for Pacific pelagic management unit 
species in Area B from March 15 through May 31.
    (2) A vessel registered for use under a receiving vessel permit may 
not receive from another vessel Pacific pelagic management unit species 
in Area B from March 15 through May 31.
    (3) 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 with 
longline gear in Area B shoreward of the outer boundary of the EEZ 
surrounding Hawaii.
     (4) From August 7 through December 31, 2000, the number of 
longline sets allowed in Area B is limited to a total of 154 sets.
    (5) From January 1 through March 14, 2001, the number of longline 
sets allowed in Area B is limited to 77 sets.
    (6) Between August 7 through December 31, 2000, the Regional 
Administrator shall prohibit the use of longline gear to fish for 
Pacific pelagic management unit species on the date and time that an 
estimated 154 longline sets will have been made in Area B.
    (7) Between January 1 through March 14, 2001, the Regional 
Administrator shall prohibit the use of longline gear to fish for 
Pacific pelagic management unit species on the date and time that an 
estimated 77 longline sets will have been made in Area B.
    (8) The Regional Administrator shall determine on the basis of 
available data when the maximum number of sets will be reached in Area 
B.
    (9) The Regional Administrator will notify each permit holder and 
each operator of vessels fishing in Area B when further use of longline 
gear to fish for Pacific pelagic management unit species in Area B is 
prohibited.
    (10) At least 24 hours advance notice will be given of the 
effective date and

[[Page 11122]]

time after which the use of longline gear to fish for Pacific pelagic 
management unit species in Area B is prohibited, as prescribed in 
paragraph (b)(9) of this section.
    (d) Longline fishing restrictions in Area C. (1) A vessel 
registered for use under a Hawaii longline limited access permit may 
not use longline gear to fish for Pacific pelagic management unit 
species in Area C from March 15 through May 31.
    (2) A vessel registered for use under a receiving vessel permit may 
not receive from another vessel Pacific pelagic management unit species 
in Area C from March 15 through May 31.
    (3) Landing or transshipping Pacific pelagic management unit 
species, that were harvested with longline gear in Area C from March 15 
through May 31, shoreward of the outer boundary of the EEZ surrounding 
Hawaii is prohibited.
    (4) For the purpose of this section, ``charity'' means an entity to 
which a taxpayer can contribute and deduct the value of any such 
contribution from taxable income as a ``charitable contribution'' as 
defined by the Internal Revenue Code at 26 U.S.C. Sec. 170(c).
    (5) Within 30 days of each landing of swordfish caught by longline 
gear in Area C, the permit holder or operator of a vessel registered 
for use under a Hawaii longline limited access permit must donate to 
charity at least 30 percent of the total proceeds from the sale of such 
swordfish.
    (6) A vessel registered for use under a Hawaii longline limited 
access permit may not possess lightsticks during a fishing trip where 
part (or all) of the trip involves fishing in Area C.
    (7) Any longline gear deployed after November 3, 2000, by a vessel 
registered for use under a Hawaii longline limited access permit that 
fishing for Pacific pelagic management unit species in Area C, 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.
    (e) Emergency closure at-sea observer coverage. (1) A vessel 
registered for use under a Hawaii longline limited access permit may 
not use longline gear to fish for Pacific pelagic management unit 
species in Area B without a NMFS-approved observer aboard the vessel.
    (2) A vessel registered for use under a Hawaii longline limited 
access permit may not use longline gear in Area C without a NMFS-
approved observer aboard the vessel, unless it is issued a written 
waiver on a per trip basis by the Administrator, Pacific Islands Area 
Office, NMFS, or a designee. The waiver must be on board the vessel and 
make available for inspection by an authorized office any time during 
the trip for which the waiver is valid.
    (3) The Regional Administrator may assign NMFS-approved observers 
to vessels registered for use under Hawaii longline permits:
    (i) Based on notice provided by the permit holder or by an agent 
designated by the permit holder to the Regional Administrator according 
under Sec. 660.23(c), or,
    (ii) According to a list containing vessel names randomly ordered 
by the Regional Administrator.
    (4) When NMFS notifies the permit holder or the designated agent of 
the obligation to carry an observer as required under this section, the 
vessel may not engage in the fishery without taking the observer.
     (5) An operator of a vessel registered for use under a Hawaii 
longline limited access permit must immediately terminate longline 
fishing in Area C while at sea upon notification by the Regional 
Administrator that the level of observer coverage is below the 10 
percent or 20 percent level of observer coverage established by NMFS.
    (6) An operator of a vessel registered for use under a Hawaii 
longline limited access permit that has been notified by the Regional 
Administrator as described in paragraph (e)(5) of this section is 
prohibited from using longline gear in Area C for the remainder of the 
trip, unless notified by the Regional Administrator that the 
prohibition has been removed for the vessel.

BILLING CODE 3510-22-S


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[FR Doc. 01-4492 Filed 2-20-01; 1:44 pm]
BILLING CODE 3510-22 -C