[Federal Register Volume 66, Number 237 (Monday, December 10, 2001)]
[Rules and Regulations]
[Pages 63630-63632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30384]


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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 Pelagic 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 and extension of expiration date.

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SUMMARY: This action extends an emergency interim rule, now in effect, 
applicable to vessels registered for use under a Hawaii longline 
limited access permit (Hawaii longline vessels) and allows the use of 
basket-style longline gear as an alternative method for deep-set tuna 
longline fishing. This emergency interim 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 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 
emergency interim rule implements an order issued by the U.S. District 
Court for the District of Hawaii (Court) in March 2001 to reduce the 
number of sea turtles injured and killed incidental to longline fishing 
operations. Other parts of this emergency interim rule implement the 
terms and conditions contained in an amended November 2000 biological 
opinion issued by the U.S. Fish and Wildlife Service (FWS) on the 
effects of the Hawaii longline fleet on the endangered short-tailed 
albatross. In October 2001, FWS amended its biological opinion on the 
short-tailed albatross allowing Hawaii longline vessels to use basket-
style longline gear as an alternative method for deep-set tuna longline 
fishing, which is implemented by this emergency interim rule.

DATES: 1. The expiration date of the emergency interim rule published 
on June 12, 2001 (66 FR 31564), is extended to June 8, 2002.
    2. The amendments to Secs. 660.12, 660.35 (a)(7), and (a)(10) in 
this emergency interim rule are effective from December 11, 2001, 
through June 8, 2002.

ADDRESSES: Copies of the environmental assessment and regulatory impact 
review prepared for this emergency interim rule may be obtained from 
Dr. Charles Karnella, Administrator, Pacific Islands Area Office 
(PIAO), National Marine Fisheries Service, 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI, 96814-4700.

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

SUPPLEMENTARY INFORMATION: On June 12, 2001, NMFS issued an emergency 
interim rule (66 FR 31561) implementing temporary measures for the 
Hawaii-based pelagic longline fishery (Hawaii longline fishery) to 
avoid the likelihood of jeopardy to sea turtles and to reduce adverse 
effects to the short-tailed albatross. These measures are consistent 
with NMFS' March 29, 2001, Biological Opinion on the Fishery Management 
Plan for Pelagic Fisheries of the Western Pacific Region and FWS' 
November 28, 2000, Biological Opinion on the Effects of the Hawaii-
based Domestic Longline Fleet on the Short-tailed Albatross 
(Phoebastria albatrus) (short-tailed albatross BiOp). NMFS received no 
written comments on the June 12, 2001, emergency interim rule.
    The action taken to protect and conserve sea turtles complies with 
a March 30, 2001, Order Modifying Injunction (Order) issued by the 
Court in Center for Marine Conservation v. NMFS, CV No. 99-00152. 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). Background information on the Order was published in several 
previous

[[Page 63631]]

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 at 66 FR 15358, March 19, 2001; 66 FR 31561, June 12, 2001) and is 
not repeated here.
    The turtle component of this emergency interim rule (a) prohibits 
Hawaii longline vessels from using longline gear to target swordfish 
north of the equator; (b) requires 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) long, with a minimum of 15 branch lines deployed between 
any 2 floats; (c) prohibits a Hawaii longline vessel from possessing 
light sticks on board the vessel; (d) prohibits Hawaii longline vessels 
from fishing with longline gear during the months of May and April 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) allows 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) requires 
operators of Hawaii longline vessels to annually attend a protected 
species workshop conducted by NMFS; (g) requires 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) requires 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) requires 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) requires the operator of a 
Hawaii longline vessel 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).
    The seabird protection component of this emergency interim rule 
implements the terms and conditions of the short-tailed albatross BiOp, 
as amended. This biological opinion requires operators and crew of 
Hawaii longline vessels operating with longline gear north of 23 deg. 
N. lat. to (1) use thawed blue-dyed bait in a manner specified by NMFS 
and discard offal strategically to distract sea birds during the 
setting and hauling of longline gear; and (2) to employ a line-setting 
machine or basket-style longline gear (as discussed below) with weights 
(minimum weight = 45 g) attached to each branch line within 1 m of the 
hook when making tuna target sets (the only type of set allowed under 
this emergency interim rule north of the equator). Also, the crew of a 
Hawaii longline vessel is required to apply certain sea bird handling 
techniques to increase the likelihood of survival of any short-tailed 
albatross that is incidentally taken and brought on board the vessel 
alive. If a short-tailed albatross is brought aboard a Hawaii longline 
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.
    This emergency interim rule implements an amendment to the short-
tailed albatross BiOp issued by FWS on October 18, 2001, in response to 
NMFS' request of August 15, 2001, to allow basket-style longline gear 
to be deployed without a line-setting machine north of 23 deg. N. lat. 
under the terms and conditions of that biological opinion. This gear 
type is regarded as a traditional rope or tarred longline fishing 
method in the Hawaii longline fishery. The FWS made this adjustment 
because this gear type, when it is deployed slack, sinks at 
approximately 9 m per minute through the first 50 m of the water 
column, which is comparable to the sink rate of a monofilament longline 
deployed by a line-setting machine. The FWS determined that the use of 
basket-style longline gear, like a line-setting machine, minimizes the 
incidental take of sea birds, including the short-tailed albatross. At 
present, there is one vessel in the Hawaii longline fishery that uses 
the basket-style longline gear. Both the Western Pacific Fishery 
Management Council (Council) and NMFS strongly support the use of 
basket-style longline gear in the fishery.
    The short-tailed albatross BiOp also requires all Hawaii longline 
vessel operators to attend annually a protected species workshop. The 
BiOp also contains seabird take mitigation measures for longline 
fishing targeting swordfish north of 23 deg. N. lat.; however, these 
measures become moot because, under this emergency interim rule, 
targeting swordfish north of the equator is prohibited under the sea 
turtle take mitigation measures.

Changes From the Original Emergency Interim Rule

    This emergency interim rule contains adjustments to regulatory 
measures at Sec.  660.12 by adding a definition for ``basket-style 
longline gear,'' by suspending Sec. 660.35 (a)(7), and by adding 
Sec. 660.35 (a)(10) that allows the use of basket-style longline gear 
as an alternative to a line-setting machine or line-shooter (currently 
required for all Hawaii longline vessels fishing above 23 deg. N. 
lat.).
    Extension of this emergency interim rule is authorized under 
section 305 (c)(3)(B) of the Magnuson-Stevens Fishery Conservation and 
Management Act. Background information on other aspects of this 
emergency interim rule regarding longline sag depth and non-regulatory 
requirements of the Court Order are presented in the Federal Register 
announcing the emergency interim rule on June 12, 2001 (66 FR 3156). 
This information is not repeated here.

Recent, Unforeseen Events or Recently Discovered Circumstances

    On October 18, 2001, FWS amended the terms and conditions of its 
November 2000 short-tailed albatross BiOp to allow the use of basket-
style longline gear in the Hawaii longline fishery. This amendment is 
based on information provided by NMFS demonstrating that this method of 
deep-set longline fishing is an acceptable alternative to monofilament 
longline deployed with a line-setting machine in minimizing sea bird 
take. This gear, when deployed slack, has a sinking rate such that 
birds diving on the bait are unable to get the bait or become hooked or 
entangled in the gear. At present there is one Hawaii longline vessel 
that uses basket-style longline gear. While using this gear, this 
vessel has not observed or reported any sea turtle interactions. Both 
the Council and NMFS believe that this vessel should be allowed to 
continue using this method of fishing. Therefore, this emergency 
interim rule includes the basket-style longline gear as an alternative 
to line-setting machine or line shooter currently required of all 
Hawaii longline vessels targeting tuna north of 23 deg. N. lat. around 
the Hawaiian Islands.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA) has determined

[[Page 63632]]

that extension of the emergency interim rule is necessary to comply 
with a U.S. District Court Order and the mandatory terms and conditions 
of a BiOp issued under section 7 of the Endangered Species Act.
    This emergency interim rule has been determined to be not 
significant for the purposes of Executive Order 12866.
    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 BiOp, 
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 BiOp. Further, the AA finds, under 
5 U.S.C. 553 (d)(1), that this rule relieves a restriction by allowing 
the use of a longline gear type that was previously prohibited above 
23 deg. N. lat. Accordingly, the AA is making this emergency interim 
rule effective from December 11, 2001, through June 8, 2002.

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: December 3, 2001.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, 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. Effective from December 11, 2001, through June 8, 2002, in 
Sec. 660.12, a definition for ``Basket-style longline gear'' is added 
in alphabetical order to read as follows:


Sec. 660.12  Definitions.

* * * * *
    Basket-style longline gear means a type of longline gear that is 
divided into units called ``baskets'' each consisting of a segment of 
main line to which 10 or more branch lines with hooks are spliced. The 
lines are made of multiple braided strands of cotton, nylon, or other 
synthetic fibers impregnated with tar or other heavy coatings that 
cause the lines to sink rapidly in seawater.
* * * * *

    3. Effective from December 11, 2001, through June 8, 2002, in 
Sec. 660.35, paragraph (a)(7) is suspended and a new paragraph (a)(10) 
is added to read as follows:


Sec. 660.35  Seabird take mitigation measures.

    (a) * * *
    (10) Use a line-setting machine or line-shooter to set the main 
longline, or use basket-style longline gear such that the main longline 
is deployed slack to maximize its sinking rate;
* * * * *
[FR Doc. 01-30384 Filed 12-7-01; 8:45 am]
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