[Federal Register Volume 66, Number 113 (Tuesday, June 12, 2001)]
[Rules and Regulations]
[Pages 31561-31565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14625]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010511123-1123-01; I.D. 042001D]
RIN 0648-AP24


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.

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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

[[Page 31562]]

vessels; prohibits longline fishing by Hawaii longline vessels in 
waters south of the Hawaiian Islands (from 15 deg. N. lat. to the 
equator, and from 145 deg. W. long. to 180 deg. 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This Order superseded the Court's Order of August 4, 2000, and this 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 deg. long., on the east by 145 deg. W. long., and on the north by 
15 deg. 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 Secs. 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

[[Page 31563]]

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 deg. 
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 deg. N. lat.; however, 
these become moot because under this emergency interim rule, targeting 
swordfish north of 23 deg. 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 deg. long., on the east by 145 deg. W. long., and on 
the north by 15 deg. 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.

[[Page 31564]]

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 Sec. 660.21, new paragraph (l) is added to read as follows:


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


Sec. 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 Sec.  
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 Sec. 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 Sec. 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 Sec. 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 
Sec. 660.34 (f).
    (rr) Fail to comply with seabird take mitigation or handling 
techniques required under Sec. 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 Sec. 660.36.
    (tt) Fail to comply with sea turtle handling and resuscitation 
requirements specified in Sec. 660.32 (e) when operating a vessel 
registered for use under a Hawaii longline limited access permit.


Sec. 660.23  [Amended]

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


Sec. 660.28  [Amended]

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

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


Sec. 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 Sec. 223.206 (d)(1) of this 
title, as appropriate.


Sec. 660.33  [Amended]

    7. Section 660.33 is suspended.

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


Sec. 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 deg. 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 deg. lat., on the north by 15 deg. N. 
lat., on the east by 145 deg. W. long., and on the west by 180 deg. 
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 deg. lat., on the north by 15 deg. N. 
lat., on the east by 145 deg. W. long., and on the west by 180 deg. 
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 deg. 
latitude, on the north by 15 deg. N. lat., on the east by 145 deg. W. 
long., and on the west by 180 deg. 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 Sec. 660.34 is added to read as follows:
    Figure 3 to Sec. 660.34--Hawaii Emergency Longline Restrictions & 
Seabird Take Mitigation Measures

[[Page 31565]]

[GRAPHIC] [TIFF OMITTED] TR12JN01.016


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


Sec. 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 deg. 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 Sec. 660.36 is added to subpart C to read as follows:


Sec. 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.
[FR Doc. 01-14625 Filed 6-7-01; 2:14 pm]
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