[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16323-16325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8333]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010511123-2076-02; I.D. 031102C]
RIN 0648-AP84


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

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 applicable to any vessel 
registered for use under a Hawaii longline limited access permit 
(Hawaii longline vessel). This rule prohibits longline fishing north of 
26 deg. N. lat. and the retention or landing of more than 10 swordfish 
per trip by Hawaii longline vessels that fish north of the equator. 
This interim emergency rule is intended to prevent additional takings 
of loggerhead sea turtles.

DATES: This emergency interim rule is effective April 5, 2002, through 
June 8, 2002. Comments must be received no later than 5 p.m., Hawaiian 
standard time, on May 20, 2002.

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 an Environmental Assessment and 
Regulatory Impact Review (RIR) prepared for this action may be obtained 
from Dr. Charles Karnella, PIAO. See also http://swr.nmfs.noaa.gov to 
view the Final Environmental Impact Statement (FEIS) on the 
implementation of the Fishery Management Plan for Pelagic Fisheries of 
the Western Pacific (FMP).

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 reduce adverse 
effects to the short-tailed albatross. Those measures are consistent 
with NMFS' March 29, 2001, biological opinion (BiOp) on the FMP and 
with the U.S. Fish and Wildlife Service's November 28, 2000, BiOp on 
the Effects of the Hawaii-based Domestic Longline Fleet on the Short-
tailed Albatross (Phoebastria albatrus). The consultations culminating 
in the two BiOps have been reinitiated and are expected to be completed 
by July 2002. The June 12, 2001, emergency interim rule was extended 
for 180 days on December 10, 2001 (66 FR 63630). The actions taken to 
protect sea turtles comply with a March 30, 2001, Order Modifying 
Injunction (Court Order) issued by the Court in Center for Marine 
Conservation v. NMFS CV No. 99-00152. Specific information on the 
protective measures in the BiOps and background information on the 
Court Order were published in several 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; 66 FR 31561, June 12, 2001; and 66 
FR 63631, December 10, 2001), and that information is not

[[Page 16324]]

repeated here. NMFS anticipates that separate final rules implementing 
the protective measures of the BiOps for the Short-tailed albatross and 
for sea turtles will be in place before the expiration of the June 12, 
2001, emergency interim rule on June 9, 2002.
    This emergency interim rule prohibits Hawaii longline vessels from 
fishing north of 26 deg. N. lat., and from retaining or landing more 
than 10 swordfish per fishing trip, if any fishing during the trip 
occurred north of the equator. The 10-swordfish trip limit is intended 
to ensure that swordfish are not the target of fishing operations, as 
required by the June 12, 2001, emergency interim rule.
    Although no loggerhead turtles were observed taken in the Hawaii 
longline fishery from April 1 through December 31, 2001, recently, 
three incidental takes of loggerhead turtles were reported by NMFS 
observers on Hawaii longline vessels during fishing operations north of 
30 deg. N. lat. One of these takes resulted in the death of the turtle. 
In addition, a leatherback turtle was reportedly taken and released 
alive on one of the trips during which a loggerhead turtle was taken. 
This level of observed takes indicates, through simple extrapolation, 
that the level specified in the incidental take statement for 
loggerhead turtles issued with NMFS' March 29, 2001, BiOp has been 
exceeded. Additionally, several vessels fishing north of 30 deg. N. 
lat. have returned with moderate to large numbers of swordfish. Before 
these vessels began fishing in these northern waters (approximately 
north of 25 deg.-26 deg. N. lat.), there had been no report of a take 
of a loggerhead turtle since the March 30, 2001, Court Order was 
issued.
    Observer data show that nearly all of the takes of loggerhead 
turtles incidental to Hawaii longline fishing operations historically 
occurred north of about 28 deg. N. lat. The recently observed takes 
fall into this pattern, all having occurred north of 30 deg. N. lat. 
NMFS believes that the prohibition of shallow longline sets (which 
fishermen typically use for catching swordfish), if adhered to, will 
avoid or minimize the takes of loggerhead turtles in the Hawaii 
longline fishery. NMFS has information suggesting that the recent 
loggerhead turtle takes occurred during fishing trips in which the 
vessels might have failed to follow the existing turtle conservation 
regulations. However, given the incidental takes of loggerhead turtles 
reported, NMFS has decided to take emergency action to immediately 
close waters north of 26 deg. N. lat. and to impose a swordfish trip 
limit to ensure the protection of loggerhead turtles. The limit on 
swordfish landings from a trip is based on vessel logbook data from 
trips made by Hawaii longline vessels during which tuna were the target 
species. Based on available data, 95 percent of trips targeting tuna 
returned with 10 or fewer swordfish. Thus, setting the limit at 10 
swordfish per trip accounts for the vast majority of tuna trips during 
which swordfish were caught. This limit will help minimize bycatch 
during tuna trips.
    The prohibitions contained in this emergency interim rule are 
expected to result in a geographical separation of Hawaii longline 
vessels from loggerhead turtles and to remove economic incentives to 
make shallow longline sets. The prohibitions of this emergency interim 
rule facilitate enforcement. NMFS can enforce the trip limit dockside 
as a vessel offloads its catch, and the closure north of 26 deg. N. 
lat. can be monitored using the vessel monitoring system (VMS); VMS 
units have been placed on each Hawaii longline vessel and document the 
position of each vessel while fishing. The provisions of this emergency 
interim rule will allow NMFS to implement the protective measures of 
the Court Order, both BiOps, and the earlier emergency interim rule in 
a more effective manner. In addition, NMFS intends to issue a proposed 
rule to make the new 10-swordfish trip limit permanent.

Recent, Unforeseen Events or Recently Discovered Circumstances

    Only in the past month has NMFS detected fishing by multiple 
vessels north of 30 deg. N. lat., with unanticipated large bycatches of 
swordfish and the consequent takes of loggerhead turtles. When 
promulgating the June 12, 2001, emergency rule, based on the 
operational patterns of the Hawaii longline fleet during the previous 
10 to 11 months, NMFS did not anticipate that some vessels would fish 
in the northern area of the Hawaii longline fishery. The March 30, 
2001, Court Order included discussion of implementing management 
measures through regulations to reduce adverse impacts on sea turtles. 
NMFS is publishing this emergency interim rule in order to afford 
additional protection to sea turtles while NMFS prepares permanent 
measures, including the 10-swordfish trip limit, that NMFS will 
promulgate through proposed and final rulemaking.
    Emergency action is also required to comply with the terms and 
conditions of the BiOp issued on March 29, 2001, by NMFS, to avoid the 
likelihood of jeopardy to endangered loggerhead turtles and to ensure 
that no irretrievable or irreversible commitment of resources is made 
which would have the effect of foreclosing the formulation or 
implementation of any reasonable and prudent alternative measures.

Immediate Benefits

    NMFS anticipates that this rule will principally benefit loggerhead 
turtles by geographically separating them from the Hawaii longline 
fleet, thereby significantly reducing the likelihood that the Hawaii 
longline fleet will take additional loggerhead turtles. The prohibition 
on retaining or landing more than 10 swordfish per trip is likely to 
benefit all sea turtle species that interact with Hawaii longline 
vessels by reducing overall fishing effort in the more near-surface 
waters of the area in which the swordfish sector of the Hawaii-based 
longline fleet operates, thus minimizing interactions with sea turtles. 
This emergency interim rule may also benefit seabirds because it will 
ban longline fishing north of 26 deg. N. lat., thus eliminating the 
potential for the Hawaii longline fishery to take seabirds that 
historically occur in larger numbers north of approximately 25 deg. N. 
lat.

Classification

    The Assistant Administrator (AA) finds that this emergency interim 
rule, which is being implemented under section 305(c) of the Magnuson-
Stevens Act, is needed to implement the reasonable and prudent 
alternative and the terms and conditions of the BiOp on sea turtles, 
facilitate effective enforcement, and ensure compliance with ESA 
sections 7(a)(2) and 7(d). Under section 305(c) of the Magnuson-Stevens 
Act, this emergency interim rule may remain in effect for no more than 
180 days after the date this rule is published, unless extended for one 
additional period of no more than 180 days.
    This emergency interim rule has been determined to be not 
significant for the purposes of Executive Order 12866.
    NMFS prepared an FEIS for the FMP that describes the impact on the 
human environment of fishing under the FMP, and an EA for this rule, as 
required by the National Environmental Policy Act. NMFS also prepared 
several RIRs, covering this and related actions, that assess the net 
national benefits of protecting sea turtles. 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. The 
economic impacts of

[[Page 16325]]

these measures, which are of limited duration, cannot be precisely 
estimated due to a lack of data but are expected to be less than $3.5 
million. Copies of the EA, FEIS, and RIRs are available (see 
ADDRESSES).
    The AA finds, for good cause, under 5 U.S.C. 553(b)(B), that 
providing prior notice and opportunity for public comment is 
impracticable and not in the public interest, given that the action 
implements mandatory protective measures to address the recent takes of 
loggerhead turtles above 30 deg. N. lat. Until these measures are 
implemented, this fishery will continue to take sea turtles. Allowing 
the fishery to continue while accepting public comments is contrary to 
the public interest in protecting and minimizing the take of endangered 
and threatened sea turtles, because it would likely result in 
additional loggerhead turtle takes and could jeopardize their continued 
existence. Further, failure to act quickly to stop these takes could 
require the complete closure of the fishery under the terms of the 
BiOp, creating additional economic hardship on individuals 
participating in the fishery. Similarly, the AA finds good cause, under 
5 U.S.C. 553(d)(3), not to delay the effectiveness of this rule for 30 
days, given the recent takes of loggerhead turtles above 30 deg. N. 
lat. In response to the recent reports of incidental takes of 
loggerhead turtles by Hawaii longline vessels during fishing operations 
north of 30 deg. N. lat., this rule is intended to immediately close 
waters above 26 deg. N. lat. and to impose a swordfish trip limit to 
protect loggerhead turtles. Delay in implementation of these measures 
is likely to result in additional loggerhead turtle takes. Accordingly, 
the AA is making this emergency interim rule effective the date of 
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: April 1, 2002.
John Oliver,
Deputy Assistant Administrator for Operations, 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, paragraph (nn) is suspended and new paragraphs 
(vv) and (ww) are added to read as follows:


Sec. 660.22  Prohibitions.

* * * * *
    (vv) 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), (h), and (i).
    (ww) Catch and retain, or land, more than 10 swordfish (Xiphias 
gladius) per trip from any vessel registered for use under a Hawaii 
longline limited access permit when any fishing during the trip 
occurred north of the equator.

    3. In Sec. 660.34, a new paragraph (i) is added to read as follows:


Sec. 660.34  Hawaii emergency longline fishing restrictions.

* * * * *
    (i) A vessel registered for use under a Hawaii longline access 
permit may not use longline gear to fish for Pacific pelagic management 
unit species north of 26 deg. N. lat.
[FR Doc. 02-8333 Filed 4-4-02; 8:45 am]
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