[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Proposed Rules]
[Pages 68834-68854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30486]



[[Page 68834]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224, and 660

[Docket No. 031125294-3294-01; I.D. 102903C]
RIN 0648-AP42


Fisheries Off West Coast States and in the Western Pacific; 
Highly Migratory Species Fisheries

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 regulations to implement the Fishery Management 
Plan for U.S. West Coast Fisheries for Highly Migratory Species (FMP), 
which was submitted by the Pacific Fishery Management Council (Pacific 
Council) for review and approval by the Secretary of Commerce.

DATES: Comments must be received by January 26, 2004.

ADDRESSES: Comments should be sent to Rodney R. McInnis, Acting 
Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 
4200, Long Beach, CA 90802.
    Copies of the FMP, environmental impact statement (EIS), regulatory 
impact review (RIR), and an initial regulatory flexibility analysis 
(IRFA) may be obtained from Donald O. McIsaac, Executive Director, 
Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 
200, Portland, OR 97220-1384. Written comments regarding the burden-
hour estimates or other aspects of the collection-of-information 
requirements contained in this proposed rule may be submitted to Svein 
Fougner, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, 
Long Beach, CA 90802, and by e-mail to [email protected], or 
faxed to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Svein Fougner, Sustainable Fisheries 
Division, NMFS, at 562-980-4040.

SUPPLEMENTARY INFORMATION: The Pacific Council prepared the FMP under 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq. On January 18, 2002, a notice of 
availability of a Draft Environmental Impact Statement for the FMP was 
published in the Federal Register (67 FR 2651). The Pacific Council 
held 7 public hearings on the FMP from January 28, 2002, to February 4, 
2002, in the States of Washington, Oregon, and California. At its March 
2002 meeting in Sacramento, CA, the Pacific Council reviewed public 
comments received at the hearings, considered written and oral 
comments, and adopted preliminary preferred alternatives for some 
issues, leaving its decision on other alternatives for a future 
meeting. At its October-November 2002 meeting in Foster City, CA, the 
Pacific Council adopted all of its preferred alternatives and voted to 
submit the FMP for Secretarial review.
    Among the preferred alternatives was a provision to allow longline 
fishing targeting swordfish east of 150[deg] W. longitude (long.). 
Before the final FMP document was submitted, however, NMFS informed the 
Pacific Council at its March 2003 meeting in Sacramento, CA about 
potential impacts of the fishery under the preferred alternative on 
endangered sea turtles. NMFS asked the Pacific Council to delay 
submission of the FMP to provide time for a rigorous scientific 
analysis of recently collected observer data, and review of the results 
by the Pacific Council and its advisory bodies, prior to final 
completion and submission of the FMP. Those data indicated that take 
rates of sea turtles in the longline fishery in the eastern Pacific 
were similar to those in the western Pacific, and if those rates were 
representative of what could be expected in the fishery, there could be 
excessive sea turtle takes under the Pacific Council's preferred 
alternative. At the Pacific Council's June 2003 meeting in Foster City, 
CA, NMFS presented reports on the catch rates of turtles in the 
longline fishery and the results of the scientific analysis of the 
data. NMFS informed the Pacific Council that allowing longline fishing 
targeting swordfish east of 150[deg] W. long. may not provide 
sufficient protection to endangered and threatened sea turtles. 
Therefore, this alternative might not be approved. The Pacific Council 
then heard reports from its advisory bodies and public comments and 
concluded that the FMP should be submitted without changing any of its 
preferred alternatives. The Pacific Council then completed the final 
FMP and submitted it for Secretarial review. A Notice of Availability 
of the FMP was published in the Federal Register at 68 FR 62763, 
November 6, 2003.
    The FMP that would be implemented by this proposed rule is intended 
to address concerns about the effect of fishing on highly migratory 
species (HMS) off the U.S. West Coast and on ocean resources caught 
incidentally to fishing for HMS. The fish species included in the 
management unit are tuna (yellowfin, bigeye, skipjack, albacore, and 
northern bluefin), billfish (striped marlin and swordfish), oceanic 
sharks (common thresher, bigeye thresher, pelagic thresher, shortfin 
mako, blue), and dorado (also commonly known as mahi mahi and 
dolphinfish). Other species ranging throughout the Pacific Ocean 
throughout the Pacific are taken incidental to fishing for HMS but are 
not in the management unit. A significant amount of information exists 
on some species, such as some of the tunas, but comprehensive stock 
assessments are needed for many species, which are harvested by 
numerous coastal and distant-water fishing nations throughout the 
Pacific. United States fishermen fish HMS in the U.S. exclusive 
economic zone (U.S. EEZ), in the exclusive economic zones of other 
nations, and on the high seas.
    Marine mammals, sea turtles, and sea birds also are occasionally 
caught incidental to fishing for HMS by some gear types. The effect on 
such species of takes by fishing gear is a problem throughout the 
Pacific Ocean, and the United States has in many cases already taken 
action under the authority of the Magnuson-Stevens Act, the Endangered 
Species Act (ESA) and the Marine Mammal Protection Act (MMPA) to 
minimize or mitigate the impact of U.S. fisheries on these resources. 
The FMP would provide additional protective measures for West Coast HMS 
fisheries.
    The FMP, if approved, would directly impose certain conservation 
and management measures on the fisheries as well as provide a 
procedural framework for future management actions that might be 
necessary as the international and U.S. fisheries change.

Management Unit Species

    The FMP is intended to ensure conservation and promote the 
achievement of optimum yield of those HMS that are defined as 
management unit species in the FMP. The FMP is designed to conserve HMS 
throughout their individual ranges, both within and beyond the U.S. EEZ 
to the extent practicable, recognizing that management authority of all 
species falls within many jurisdictions. The Pacific Council reviewed 6 
alternatives for designating management unit species. As indicated, the 
proposed species to be managed are striped marlin and swordfish; 
common, pelagic, and bigeye thresher shark, shortfin mako (bonito) 
shark), and blue shark; north Pacific albacore, yellowfin, bigeye, 
skipjack, and northern bluefin

[[Page 68835]]

tuna; and dorado. Other groupings of species (e.g., excluding dorado or 
excluding bigeye and pelagic thresher sharks) are included in the FMP 
as alternatives to the preferred alternative, and public comment is 
sought on what species should be in the management unit.

Tuna

    Some tuna species are highly productive and are harvested by 
fishing fleets of many countries. For example, yellowfin and bigeye 
tuna are harvested by the United States, Mexico, Costa Rica, and other 
coastal states in Central and South America. Harvest limits for 
yellowfin and bigeye tuna in the eastern Pacific are set by the Inter-
American Tropical Tuna Commission (IATTC) and not by NMFS through the 
FMP. However, the decisions made by the IATTC regarding harvest limits 
and the basis for those decisions would be available to the Pacific 
Council for its review. Opinions of the Pacific Council on 
international management would be forwarded to the U.S. State 
Department through NMFS. If allocations among U.S. fishermen became 
necessary as a result of decisions by the IATTC, the Pacific Council 
would be the body with the responsibility to make recommendations to 
NMFS regarding implementation. A similar arrangement would be utilized 
by NMFS for any fishery in which an international organization is 
involved. No harvest limits for bluefin tuna, skipjack tuna, or north 
Pacific albacore are proposed by the FMP at this time, although a 
maximum sustainable yield for each species of tuna is contained in the 
FMP. Unilateral harvest limits for these species would have no 
practical effect, given the international nature of the fisheries for 
these species and the low portion of total catches for which the U.S. 
fleet is responsible in most cases. However, if international action to 
limit harvests is agreed to, then the Pacific Council may play a role 
in implementing such limits with respect to U.S. fisheries.

Sharks

    Most sharks are less productive than other HMS and are vulnerable 
to overfishing. Although shark species included in the management unit 
range throughout the Pacific Ocean and are not being overfished, the 
FMP proposes to adopt harvest limits off the Pacific coast for common 
thresher of 340 metric tons (mt) and shortfin mako of 150 mt to prevent 
local depletion. The thresher shark harvest guideline is lower than the 
recommended harvest limit set in the tri-state fishery management plan 
for this species developed by the States of California, Oregon, and 
Washington. The justification for a more conservative approach in the 
FMP is the result of an analysis of historical harvests explained in 
Chapter 3 of the FMP, which contains an estimate of a local maximum 
sustainable yield that is less than that contained in the tri-state 
plan. No harvest limit is proposed for pelagic thresher shark, bigeye 
thresher shark or blue shark. Public comment is sought on this approach 
and whether harvest limits should be placed on other species.

Other Species

    No harvest limits are proposed for striped marlin, dorado, or 
swordfish. Again, unilateral limits for U.S. fisheries would have no 
beneficial effect, given the international nature of the fisheries and 
the small share of total catch made by U.S. vessels. Like many HMS, 
striped marlin off the Pacific coast is at the northern limit of its 
range off California. The sale of striped marlin would be prohibited to 
prevent commercial targeting of this species, which has such high value 
for recreational fisheries. This species has been a target of 
recreational fisheries for decades. The proposed limit on the sale of 
marlin contained in the FMP continues a prohibition that has been in 
California law since the 1930s.

Fishing Gear Employed

    HMS are harvested off the West Coast by five commercial gear groups 
and various recreational fisheries. Under the FMP, the authorized 
commercial gears are surface hook-and-line, drift gillnet, longline, 
purse seine, and harpoon. Recreational anglers would be allowed to 
pursue HMS from commercial passenger fishing vessels and from private 
boats with hook-and-line gear.
    The definition of fishing gear is important because gear not 
defined in regulations implementing the FMP would not be legal gear. 
For example, mousetrap gear, which is a free floating hook-and-line 
gear, is not defined in this proposed rule and would not be legal. 
Likewise, if a drift gillnet is defined as having a mesh size of at 
least 14 inches (35.56 cm), which is the proposed action in the FMP, 
any net with a smaller mesh size would not be legal and could not be 
fished from Pacific coast ports for HMS. This issue is discussed in 
section 9.2.4.1 of the FMP and in Major Issues below.

Major Issues

1. Management of Longline Fishery

    The preferred alternative with regard to longline fishing is to (1) 
prohibit longline fishing in the U.S. EEZ; (2) adopt, for longline 
vessels fishing west of 150[deg] W. long., all of the restrictions that 
apply to longline vessels fishing with a limited entry permit under the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region (Pelagics FMP); and (3) adopt, for longline vessels 
fishing outside the U.S. EEZ and east of 150[deg] W. long., the same 
restrictions as those that apply to longline vessels fishing with a 
limited entry permit under the Pelagics FMP, except that the 
restrictions that prevent shallow sets for swordfish would not apply.
    The restrictions preventing shallow sets for swordfish in the 
central and western Pacific were designed to reduce the impact on 
threatened and endangered sea turtles taken incidental to swordfish 
sets. After being presented with available information on the frequency 
of sea turtle interactions expected under different fishing scenarios, 
however, the Pacific Council felt that there was not sufficient 
information available in the eastern Pacific to justify prohibiting 
swordfish sets east of 150[deg] W. long. Further, the Pacific Council 
concluded that it could not reasonably estimate the impacts (reduced 
sea turtle takes, reduced swordfish catches, etc.) if there were 
partial limits such as time/area closures. Therefore, the FMP proposes 
that longline vessels be able to target swordfish in the eastern 
Pacific east of 150[deg] W. long. These vessels would have to comply 
with all other restrictions, including the requirements to maintain a 
vessel monitoring system (VMS) on board the vessel, use line clippers 
and dip nets for turtle release, and use seabird avoidance gear and 
techniques as in waters west of 150[deg] W. long., as well as complying 
with the proper handling of sea turtles and seabirds.
    This approach would establish consistency with regulations in 
waters west of 150[deg] W. long. while minimizing the economic impact 
on vessels fishing from West Coast ports; however, regulations east of 
150[deg] W. long. would be different. This is a serious issue for NMFS. 
Based on available observer data, NMFS is concerned that allowing 
shallow sets for swordfish east of 150[deg] W. long. may not comply 
with the ESA; therefore, this measure is at risk of not being approved.
    A formal consultation under section 7 of the ESA has been initiated 
on the effects of the fisheries as they would

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operate under the FMP. The consultation will include a review of the 
impact of all fishing gear regulated by the FMP, the impact of other 
domestic fishing fleets as they now operate, and the most recent 
information on the status and trends of sea turtle populations. A 
biological opinion will be written, and if a jeopardy conclusion is 
reached, a reasonable and prudent alternative will be provided to the 
Pacific Council that will be designed to provide sufficient protection 
for endangered and threatened sea turtles. Even if there is not a 
jeopardy conclusion, the biological opinion may include reasonable and 
prudent measures and conservation recommendations to reduce or mitigate 
sea turtle interactions. Also, an incidental take statement will be 
issued that may set terms and conditions on fishing to reduce or 
mitigate sea turtle interactions. The biological opinion will thus 
provide NMFS and the Pacific Council with information that could be 
used to develop framework measures under the FMP that would further 
address the impact of longline fishing on endangered and threatened sea 
turtles. Finally, it is noted that the observer coverage anticipated 
under the FMP will greatly improve the information base for future 
management actions.
    A section 7 consultation also has been initiated concerning the 
potential impacts of the fisheries under the FMP on other species. The 
FMP requires that longline fishers use seabird avoidance gear and 
techniques, as is required for central and western Pacific longline 
fishers. This consultation is scheduled to end on the same time frame 
as the consultation with respect to species under NMFS jurisdiction.

2. Management of Drift Gillnet Fishing

    Drift gillnet fishing is currently regulated by the states and by 
regulations implementing the MMPA and the ESA. The preferred 
alternative in the FMP is to incorporate under Magnuson-Stevens Act 
authority the gear and time/area closures currently in state and ESA 
regulations into the regulations implementing the FMP. Therefore, state 
area closures that extend into the U.S. EEZ are included in this 
proposed rule. Gear restrictions in state regulations and in NMFS 
regulations under the ESA to protect sea turtles are included as well. 
The California limited entry program for drift gillnet gear is not 
included in this proposed rule because the Pacific Council decided not 
to address overcapitalization issues at this time; however, the 
California limited entry program would remain in effect under State of 
California regulations.
    Regulations establishing a Take Reduction Plan for drift gillnet 
vessels that includes specifications for extender lines and pingers, an 
acoustical device attached to the net, and skipper education workshops 
can be found at 50 CFR 229.30 and 229.31. These regulations would 
remain in effect when the FMP is implemented and would not be moved to 
the section of the CFR that implements the FMP. However, it is 
anticipated that the Pacific Council will be provided the opportunity 
to participate in the Take Reduction Team process to ensure that the 
Take Reduction Team process and recommendations and the FMP process and 
actions are carried out in a coordinated manner.
    Endangered and threatened sea turtles are defined as fish by the 
Magnuson-Stevens Act. Area and seasonal closures designed to protect 
sea turtles in the drift gillnet fishery that are currently in effect 
at 50 CFR 223.206 would be moved to CFR 660 subpart K. The ESA section 
7 consultations will address the impacts of drift gillnet fishing on 
all listed species.
    The FMP defines drift gillnet gear as 14-inch (35.56-cm) stretched 
mesh or greater. A drift gillnet vessel with a mesh size less than 14 
inches (35.56 cm) would not be able to target HMS. An incidental 
landing of 10 HMS per trip, other than swordfish, would be allowed to 
minimize bycatch of HMS while fishing for state managed species.

3. Permits

    This proposed rule would require all commercial vessels fishing for 
HMS to obtain a permit with an endorsement for the specific gear to be 
used. A permit would also be required for all recreational charter 
vessels and commercial passenger carrying fishing vessels (CPFV) 
fishing for HMS. Other alternatives analyzed in the FMP include a 
general permit without a gear specification and a permit system that 
includes all recreational vessels. The purpose of a permit is to 
identify the vessels in the HMS fisheries so that surveys can be made 
when management information is required and to notify all participants 
of potential management actions affecting the fisheries. Permits based 
on gear type make surveys more efficient because landing and economic 
information is often needed for specific gear types. Permits would be 
issued to the owner of a specific vessel. Data would be maintained so 
that landings by the permitted vessel or by the owner of the vessel can 
be summarized, which would give the Pacific Council flexibility in 
determining qualifications for limited entry permits if the Pacific 
Council should decide to develop a limited entry program. No Federal 
limited entry program is being proposed at this time because the 
Pacific Council does not have sufficient information to determine the 
need for such a program; however, the Pacific Council has assigned its 
HMS Management Team to begin evaluating a limited entry program for 
longline vessels fishing from West Coast ports. A limited entry program 
would require substantial analysis and an amendment to the FMP.
    Permits are currently required for vessels fishing on the high seas 
under the authority of the High Seas Fishing Compliance Act of 1995 and 
for longline vessels fishing under the authority of the Pelagics FMP. 
In compliance with United States obligations under the Tuna Conventions 
Act of 1950, NMFS is also providing information to the Inter-American 
Tropical Tuna Commission (IATTC) for an international vessel register 
including all U.S. vessels that fish tuna in the eastern Pacific Ocean. 
Thus, a list of vessels that would likely fall under the jurisdiction 
of the FMP has been completed by the Southwest Region, NMFS. The 
regulations propose issuing HMS permits to all individuals on this 
list. There would be no qualification requirements for a permit. Vessel 
owners who have not received a permit to harvest HMS by 60 days 
following the effective date of the final regulations would have to 
apply for an HMS permit. All vessels would need an HMS permit by 
January 1, 2005. There would be no cost to fishermen for this permit.

4. Recording and Recordkeeping

    The proposed rule would require all commercial and recreational 
charter vessels and CPFV to maintain a logbook of catch and effort 
statistics for their HMS fishing under their permits to be submitted to 
the Regional Administrator following the end of a fishing trip. The 
proposed rule allows state logbooks to meet the Federal reporting 
requirement if those logbooks are submitted on time and provide the 
required information and if the information is available to the 
Regional Administrator by agreement with that state. Federal logbooks 
are now required for: vessels fishing on the high seas under the 
authority of the High Seas Fishing Compliance Act of 1995, vessels 
fishing tuna under the authority of the Tuna Conventions Act of 1950, 
and vessels fishing under the authority of the regulations implementing 
the Pelagics FMP. A Federal logbook for troll vessels fishing albacore, 
which is currently voluntary,

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would be required under the FMP. The State of California requires a 
logbook for harpoon vessels, drift gillnet vessels, and CPFVs. The 
State of Oregon requires a logbook for drift gillnet vessels. These 
state logbooks, which are tailored to specific gear types, would be 
acceptable under these regulations. Duplicate logbooks would not be 
required.

5. Bycatch

    A number of provisions are included in the FMP to measure and 
reduce bycatch and to provide better information to assess the amount 
and type of bycatch in HMS fisheries. The proposed standardized 
reporting system for bycatch assessment is to initially require that 
longline, surface hook-and-line, small purse seine fisheries, and 
recreational charter vessels carry observers when directed by the 
Regional Administrator. An observer program is already in effect for 
drift gillnet vessels and longline vessels, though coverage needs to be 
expanded for the latter. In consultation with the Pacific Council, its 
advisory bodies, and the fishery participants, NMFS will develop 
initial observer coverage plans for these fisheries, which will be 
completed 60 days following approval of the FMP. The observer coverage 
plans for these fisheries may be adjusted as the initial data is 
assessed and more is learned about the levels of coverage necessary to 
obtain statistically reliable data on bycatch in the various fisheries. 
In the longer term, NMFS will develop observer sampling plans for 
private recreational vessels to assess potential ways of improving 
information on managed species and on the quantity of bycatch in 
recreational fisheries.
    The FMP identifies a variety of measures already in effect (e.g., 
drift gillnet mesh size, time and area closures for certain gear types) 
to prevent or reduce bycatch and evaluates the practicability of 
additional bycatch reduction measures.

6. Management Organizations

    There is no single, pan-Pacific institution that manages all HMS 
throughout their ranges. The IATTC adopts conservation measures for 
yellowfin and bigeye tunas in the eastern Pacific Ocean. Member nations 
of the IATTC, including the United States, are obligated to implement 
IATTC conservation measures for their national fisheries. On September 
5, 2000, the Convention on Conservation and Management of Highly 
Migratory Fish Stocks in the Western and Central Pacific Ocean was 
opened for signature by the coastal nations of the western and central 
Pacific and nations fishing in that region. The Convention has not yet 
entered into force and has not been ratified by the United States, but 
it would establish a commission empowered to adopt management measures 
for HMS throughout their ranges in the central and western Pacific. The 
IATTC and the new western Pacific commission may play important roles 
in managing West Coast-based HMS fisheries.
    In 1981, the United States and Canada signed the Treaty on Pacific 
Coast Albacore Tuna Vessels and Port Privileges, which allows fishing 
vessels of each nation to fish for albacore tuna in waters of the other 
nation beyond 12 nautical miles. Recently, U.S. albacore fishermen have 
become concerned about the increased effort by Canadian vessels in U.S. 
waters and the lack of information on the amount of albacore taken by 
Canada. The United States engaged in negotiations with Canada on these 
issues, which resulted in a treaty amendment in July 2002. The United 
States can promulgate regulations to implement the amended treaty if 
the U.S. Congress enacts legislation authorizing the promulgation of 
regulations.
    Within the United States, three regional fishery management 
councils have management responsibility for HMS in the Pacific Ocean: 
the Pacific, the North Pacific, and the Western Pacific Fishery 
Management Councils. The Western Pacific Fishery Management Council 
manages highly migratory species in the central and western Pacific 
under the authority of the Pelagics FMP. Many of the same stocks of HMS 
are harvested in separate jurisdictions. In some cases vessels are 
fishing in the same areas but landing in different jurisdictions, where 
there may be different management objectives and management measures.
    Effective management of HMS in the Pacific will require the Pacific 
Council to be fully informed of management actions being considered in 
the international organizations affecting HMS and will require the 
Pacific Council to coordinate its activities with the Western Pacific 
Fishery Management Council and North Pacific Fishery Management 
Council. Although management objectives may differ in the respective 
areas, consistency is expected to be achieved by NMFS to meet the 
requirements of the Magnuson-Stevens Act while giving full 
consideration to local needs.

7. Protected Species and the Framework Process

    Drift gillnet and longline vessels encounter endangered and 
threatened sea turtles and marine mammals during fishing operations, 
and longline vessels encounter significant numbers of birds. Measures 
to prevent jeopardy and minimize the impacts on these species have been 
implemented through regulations under the authority of the MMPA and the 
ESA. Area closures and special equipment apply to drift gillnet 
vessels. There is much less information about the extent or nature of 
interactions with sea turtles and seabirds by vessels engaged in purse 
seine fishing for tuna, harpoon fishing for swordfish, and trolling for 
albacore. However, available information indicates that interactions 
are very rare. The FMP mandates observer coverage to ensure a sound 
scientific basis for determinations of interactions and impacts and 
consideration of management adjustments if necessary and appropriate. 
It is possible that additional data will show that other fishing gear 
used to harvest highly migratory species has an impact in protected 
species. The FMP recognizes that the Pacific Council is the body best 
suited to weigh and consider all potential impacts on fishing for HMS 
from West Coast ports. The FMP includes framework procedures by which 
the Pacific Council can consider the need for additional actions as new 
information becomes available, e.g., observer data demonstrating a 
protected species interaction problem. The framework process explicitly 
includes the potential for action to conserve and protect species of 
special concern.
    Section 118(f)(9) of the MMPA authorizes the Assistant 
Administrator for Fisheries (AA) to promulgate regulations governing 
commercial fishing operations to implement a take reduction plan to 
protect or restore a marine mammal stock or species. Likewise, vessels 
fishing for highly migratory species may have an impact on threatened 
or endangered species, which could require action by the Assistant 
Administrator under the authority of the ESA. The Pacific Offshore 
Cetacean Take Reduction Team established under the MMPA reviews fishery 
and observer data and provides guidance to NMFS on actions needed to 
protect marine mammals. The Southwest Regional Administrator will 
provide these reports to the Pacific Council for recommendations on 
whether and how best to implement any necessary measures. If 
appropriate, the Pacific Council will utilize the

[[Page 68838]]

framework processes in the FMP to address these issues to the extent 
FMP regulations are appropriate. This process does not prevent the AA 
from taking action under the authority of the MMPA and the ESA 
independent of the Pacific Council process.
    The Pacific Council submitted draft regulations with the FMP as 
required by the Magnuson-Stevens Act. While technical changes have been 
made for clarity and compliance with requirements of the Office of the 
Federal Register, no substantive changes in the regulations have been 
made.

Classification

    At this time, NMFS has not determined that the FMP this proposed 
rule would implement is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period.
    The Pacific Council prepared the FMP in the format of a final 
environmental impact statement (FEIS) consistent with the National 
Environmental Protection Act (NEPA). NOAA expects to file the FEIS with 
the Environmental Protection Agency after Secretarial review of the FMP 
has begun but before final action to approve, disapprove, or disapprove 
in part the FMP. The FMP contains a framework management process that 
facilitates timely implementation of management measures by the Pacific 
Council without amending the FMP. This will allow the Pacific Council 
and NMFS to act quickly to address resource conservation issues. 
Maximum sustainable yield is established for all managed species to 
ensure compliance with the Magnuson-Stevens Act, although some species 
are also managed by international organizations and come within the 
jurisdiction of other fishery management councils. Consistency of 
management to ensure effective conservation and management is a goal of 
the FMP. Harvest limits are established for common thresher and mako 
shark to prevent local depletion. Although highly migratory, evidence 
indicates that local depletion of these sharks can occur and would have 
an impact on these species and the fisheries involved. To protect 
endangered turtles and protected seabirds, the FMP makes regulations 
governing longline fishing from West Coast ports consistent with the 
rules established for longline vessels fishing out of Hawaii, when West 
Coast vessels are fishing west of 150[deg] W. long.; therefore, all 
U.S. fishermen must adhere to the same conservation measures in these 
waters regardless of jurisdiction. However, in waters east of 150[deg] 
W. long., West Coast longline vessels would not be subject to the same 
limitation as western Pacific vessels. The impacts of this approach, 
both with respect to implications for effective management and with 
respect to ESA issues, will be fully evaluated through the review of 
the FMP and the section 7 consultations described above. Rules 
governing drift gillnet fishing issued under the authority of the ESA 
are incorporated in the FMP. Incorporating rules in the FMP issued 
under other authorities will ensure wider public review of management 
issues and broader analysis. Permit and reporting requirements of the 
FMP build on existing programs to obtain sufficient information needed 
for management while minimizing duplication.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA that describes the economic impact this 
proposed rule, if adopted, would have on small entities. The IRFA is 
available from NMFS (see ADDRESSES). A summary of the IRFA follows:
    A fish-harvesting business is considered a ``small'' business by 
the Small Business Administration (SBA) if it has annual receipts not 
in excess of $3.5 million. For related fish-processing businesses, a 
small business is one that employs 500 or fewer persons. For marinas 
and charter/party boats, a small business is one with annual receipts 
not in excess of $5.0 million.
    Fishing vessels targeting HMS are expected to be the only types of 
small entities directly impacted by the proposed actions. Any 
regulatory action under the FMP that would result in a reduction in 
domestic landings of HMS are expected to be offset at the processor 
level by imports at comparative prices. None of the initial regulatory 
alternatives considered are expected to add to the costs or reduce 
revenues of marinas and charter/party boats. Only the permit and 
logbook requirements described below would add additional reporting.
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the SUMMARY and elsewhere 
in the SUPPLEMENTARY INFORMATION of this proposed rule and are not 
repeated here.
    The FMP proposes management of 5 commercial fishing fleets and a 
fleet of recreational charter vessels. Each fleet has its own gear 
requirements, each has a differential impact on ocean resources, and 
each has different economic circumstances. The FMP authorizes 
commercial legal HMS gear as harpoon, surface hook and line, drift 
gillnet of at least 14-inch (35.56-cm) stretched mesh or greater, purse 
seine, and pelagic longline. The FMP authorizes rod and reel, spear, 
and hook and line as recreational gear. An alternative for drift 
gillnet gear was to allow stretched mesh less than 14 inches (35.56 
cm).
    The proposed alternative of requiring 14-inch (35.56-cm) stretched 
mesh or larger is consistent with the historic use of drift gillnet 
used to target swordfish and sharks. Fishermen estimated that there may 
be as many as 8-10 vessels that occasionally use small-mesh drift 
gillnets when albacore and bluefin tuna are available. There could be 
as many as 20 vessels that might have fished small-mesh drift gillnets 
at one time or another, based on landing receipts for drift gillnet 
vessels landing albacore and bluefin tuna, but not swordfish. Vessels 
fishing small mesh drift gillnet gear would be restricted to landing 
HMS only as an incidental catch. The economic impact on the four 
vessels that have been documented as using small mesh drift gillnets 
amounts to between 20 percent and 48 percent of gross receipts. These 
vessels landed between 1.0 and 15.0 mt of albacore and 0.0 to 3.0 mt of 
bluefin tuna during the 2001 season. The vessels might make up for the 
lost revenue through other small mesh gillnet fisheries or simply 
return to using large mesh nets because all four vessels also currently 
possess permits for use of the larger mesh gear. Vessels currently 
fishing large mesh nets would suffer no economic loss under this 
alternative as they would not need to modify their gear or current 
fishing practices. The opportunity for albacore surface hook-and-line 
vessels to deploy small mesh drift gillnet gear to target albacore 
while on overnight trips would be preempted under this alternative. 
Loss of this opportunity would prevent realization of potential 
efficiency gains from landing more albacore per unit of time on the 
water.
    For drift gillnet vessels using nets with 14-inch (35.56-cm) or 
greater stretched mesh, the FMP adopts all Federal conservation and 
management measures in place under the MMPA and ESA; adopts all state 
regulations for drift gillnet fishing under Magnuson-Stevens Act 
authority, except the states' limited entry programs, which will remain 
under state authority; modifies an Oregon closure inside 1000 fathoms 
to be in effect year round; closes U.S. EEZ waters off Washington to 
all drift gillnet vessels; and includes provisions (as in current ESA 
regulations) to establish a turtle protection closure north of Point

[[Page 68839]]

Sur, CA to 45[deg] N. lat. from August 15 to November 15, and south of 
Pt. Conception, CA to 120[deg] W. long. during a forecasted or 
occurring El Nino event in the months of June, July, and August. 
Existing Federal and state regulations, including current state drift 
gillnet time-area closures and gear restrictions were deemed 
appropriate for adopting. However, the Pacific Council concluded that 
incorporating under MSA authority the existing state limited entry 
programs would significantly increase Federal costs and administrative 
burdens and was premature. The Pacific Council may consider limited 
entry under the FMP in the future and has already asked its plan team 
to begin consideration of limited entry for the West Coast longline 
fishery. Closures off Washington and Oregon are intended to protect the 
common thresher shark, sea turtles and marine mammals. This alternative 
modifies the current state regulations to prohibit, year round, drift 
gillnet fishing for swordfish and sharks in U.S. EEZ waters off Oregon 
east of a line approximating the 1,000 fm curve (deleting an existing 
May-August prohibition within 75 nautical miles) and prohibits drift 
gillnet fishing in all U.S. EEZ waters off Washington. The State of 
Washington currently does not allow the use of drift gillnet gear and 
Oregon does not allow drift gillnets to target thresher shark, although 
drift gillnet vessels have fished off both states and landed their 
catch in California.
    Approximately 64 vessels actively participate in the drift gillnet 
fishery off the U.S. West Coast (see table below). All of these vessels 
would be considered small businesses under the SBA standards. 
Therefore, there would be no disproportionate financial impacts between 
small and large vessels under the proposed action.

                       Total ex-vessel revenue and dependence on swordfish for the 64 drift gillnet vessels with landings in 2001.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Dependence on Drift Gillnet                                  Average Percent Drift
                                                                    Caught Swordfish (category    Average Total Ex-vessel         Gillnet Swordfish
                        Number of Vessels                           of swordfish revenue/total       Revenue ($/vessel)       (swordfish revenue/ total
                                                                             revenue)                                                  revenue)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                9                                                    < percent                     $131,171                 2.07 percent
                                3                                             < 5 - 10 percent                      $80,661                 6.51 percent
                                6                                   10 - 15 percent                     $204,164                12.48 percent
                                8                                   15 - 20 percent                     $113,173                17.88 percent
                                8                                   20 - 25 percent                      $78,063                22.43 percent
                                4                                   25 - 30 percent                      $58,497                26.78 percent
                                5                                   30 - 40 percent                      $88,168                37.37 percent
                                4                                   40 - 50 percent                     $142,637                43.72 percent
                                5                                   50 - 60 percent                      $85,076                55.02 percent
                                8                                   60 - 70 percent                      $57,054                65.62 percent
                                4                                        70 percent                       $3,834                87.43 percent
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Financial or private costs, and measures of fishing performance are 
those costs and performance measures faced by individual vessel owners. 
Short-run, financial or private profit realized by vessel owners from 
participation in the swordfish/shark gillnet fishery was calculated as 
the difference between the annual private costs incurred during 
swordfish/shark fishing operations -- the annual variable costs 
associated with swordfish/shark fishing -- and the total ex-vessel 
revenue generated from the vessel's annual landings from swordfish/
shark fishing. Only short-run measures of financial and economic 
performance were calculated because many vessels typically engage in 
other types of fishing, and there is no reasonable basis for allocating 
fixed and common costs across types of fishing, i.e. across drift 
gillnet, surface hook-and-line, or others. These are costs that do not 
vary with the level of fishing activity and cannot be assigned to a 
single type of fishing or output. Under these circumstances common or 
fixed costs are excluded from the short-run net benefit and financial 
profit calculations for each management alternative. Although drift 
gillnet vessels harvest a number of species and will use alternative 
gears, no attempt was made to evaluate potential changes in fishing 
strategies by these vessels in response to different opportunities to 
harvest HMS under each of the regulatory alternatives, and what this 
would mean in terms of operating costs and ex-vessel revenues under 
alternative fishing strategies.
    Financial impacts of each drift gillnet regulatory alternative were 
evaluated based on incremental changes from the status quo; i.e., the 
difference between drift gillnet ex-vessel private profits under the 
proposed action and drift gillnet private profits under the status quo. 
The following table reports the estimated incremental changes in short-
run financial profits for drift gillnet vessels for each regulatory 
alternative relative to the status quo. Financial impacts are evaluated 
as the present value of changes in short-run financial profits over a 
25 year time period discounted at 7 percent and 4 percent discount 
rates. In column two, the present value of the change in average annual 
short-run financial profit from the status quo (from column three) is 
calculated for a 25-year time horizon at 7 percent and 4 percent 
discount rates. Column three reports the difference in estimated 
average annual short-run financial profit the difference between 
average annual exvessel revenue and average annual variable costs - 
under the alternative being considered and the average annual short-run 
financial profit under the status quo alternative. The discount rate is 
the rate of interest at which the cash flows associated with the 
proposed policy are to be discounted. The choice of discount rate 
reflects social time preference and the opportunity cost of resources 
that are used under the policy. Social time preference tends to 
discount the future less heavily than private time preference, while 
opportunity cost considerations tend to weigh against using lower 
discount rates for public policies for fear of preempting higher valued 
private use of the appropriated resources.
    The estimated changes in financial profit are based on cost and 
earnings surveys of industry members. For the drift gillnet fishery, 42 
vessel owners (about half the active fleet) responded by providing 2 
years of data each. The response rate was sufficient to provide a 
robust analysis.
    The following abbreviations are used in the tables summarizing the 
analyses:

[[Page 68840]]

 NQ+ = non-quantifiable positive, NQ- = non-quantifiable negative, NC = 
no change from status quo, and UN = unknown and NA = not applicable.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
 Drift Gillnet Alternative 1: Continues the swordfish/                           NC                           NC
 shark DGN fishery regulations under current state and
      Federal authorities. (Status quo/No action)
 Drift Gillnet Alternative 2: Differs from status quo                            NA                     -$56,769
  with the imposition, on all DGN fishers, of a year
   round Oregon closure inside 1000 fm (or way point
  equivalent), elimination of the May-August closure
  inside 75 miles off Oregon, and the closure of U.S.
     EEZ waters off Washington. (Proposed Action)
                7-percent Discount Rate                                   -$661,557                           NA
                4-percent Discount Rate                                   -$886,843                           NA
 Drift Gillnet Alternative 3: Endorses or adopts only                            NA                           NC
existing Federal (MMPA, ESA) DGN regulations into FMP;
defers to state regulations; no difference from status
                         quo.
                7-percent Discount Rate                                          NC                           NA
                4-percent Discount Rate                                          NC                           NA
  Drift Gillnet Alternative 4: Endorses or adopts all                            NA                           UN
 Federal conservation and management measures in place
 under the MMPA and ESA, and adopts state regulations
     under MSFCMA authority, but also includes and
    federalizes the states' limited entry programs;
 differs from status quo by the impact of federalizing
            states' limited entry programs.
                7-percent Discount Rate                                          UN                           NA
                4-percent Discount Rate                                          UN                           NA
 Drift Gillnet Alternative 5: Adopts turtle time/area                            NA                    -$247,764
closures per Biological Opinion, including larger area
closure north of Point Conception; differs from status
    quo by the impact of enlarging the closed area.
                7-percent Discount Rate                                 -$2,887,333                           NA
                4-percent Discount Rate                                 -$9,052,347                           NA
   Drift Gillnet Alternative 6: Prohibits the use of                             NA                         $310
  drift gillnets to take swordfish and sharks in any
   U.S. EEZ waters less than 1000 fm off Oregon and
 Washington; differs from status quo by the impact of
                 closing this area.\2\
                7-percent Discount Rate                                      $3,617                           NA
                4-percent Discount Rate                                      $4,848                           NA
 Drift Gillnet Alternative 7: Drift gillnets could not                           NA                      -$8,612
 be used to take swordfish and sharks in any U.S. EEZ
    waters north of 45[deg] N latitude year round,
  including times when the northern turtle closure is
 not in effect (Nov 16 to Aug 14); differs from status
        quo by the impact of closing this area.
                7-percent Discount Rate                                   -$100,365                           NA
                4-percent Discount Rate                                   -$134,544                           NA
 Drift Gillnet Alternative 8: Drift gillnetting would                            NA                     -$56,769
  be prohibited inside 75 nm off Oregon from May 1 to
  August 14 and inside the 1,000 fm curve the rest of
 the year, and U.S. EEZ waters off Washington would be
    closed year round to all, including Oregon- and
 California-based DGN fishers; differs from the status
   quo by the impact of the closures off Oregon and
              Washington to all fishers.
                7-percent Discount Rate                                   -$661,557                           NA
                                                        ...........................  ...........................
                4-percent Discount Rate                                   -$886,843                           NA
----------------------------------------------------------------------------------------------------------------

    The impact on drift gillnet vessels under Alternative 2, the 
proposed action, primarily stems from rescinding the closure of the 
U.S. EEZ to fishing by Oregon vessels inside 75 nautical miles off 
Oregon from May 1 to August 14, closing waters inside the 1,000 fathom 
curve off Oregon, and the entire U.S. EEZ off Washington to all 
fishermen year round. These closures alone reduce the discounted value 
of short-run financial profits available to the fleet formerly fishing 
in those areas by $661,557 over 25 years at a 7 percent discount rate; 
or $886,843 over 25 years at a 4 percent discount rate. (The data used 
for the financial analysis of the Oregon and Washington closures were 
provided by 2 fishermen out of the 2-3 active fishermen operating in 
these areas and covered 2 years of fishing for both respondents.)
    Although the absolute level of decline in short-run financial 
profits from this measure is comparatively small in relation to the 
entire fishery, the entire burden is borne by the 2-3 vessels that 
currently fish both swordfish and thresher sharks, but especially the 
latter using drift gillnet gear in these waters. Their lost opportunity 
represents a decline of 51 percent in their short-run financial 
profits.
    The FMP establishes a prohibition on the use of pelagic longline 
gear in the U.S. EEZ. The proposed action continues the de facto 
longline prohibition throughout the U.S. EEZ and minimizes potential 
bycatch of fish and protected species, and reduces fishery competition 
problems. There are no vessels currently participating in a pelagic 
longline fishery within the U.S. EEZ off the U.S. West Coast. Although 
Oregon is the only state that allows pelagic longlining within the U.S. 
EEZ on a case by case basis, no landings have occurred. All of the 
Oregon vessels would be considered small businesses under the SBA 
standards; therefore, there would be no financial impacts resulting 
from disproportionality between small and large vessels under the 
proposed action.
    Financial impacts of each pelagic longline regulatory alternative 
within the U.S. EEZ were evaluated based on

[[Page 68841]]

incremental changes from the status quo; i.e., the difference between 
pelagic longline ex-vessel private profits under the proposed action 
and pelagic longline private profits under the status quo. Because 
there are no empirical financial data available for this fishery, 
comparisons are based on the application of economic theory to 
potential fishing opportunities arising from the regulatory 
alternatives. The following table reports the estimated incremental 
qualitative changes in short-run financial profits for vessels for each 
regulatory alternative relative to the status quo. The annual average 
change in short-run financial profits is also shown.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
   Pelagic Longline w/i the U.S. EEZ Alternative 1:                              NC                           NC
  Current state measures would remain in place under
 states' authorities and there would be no new Federal
  regulations governing longline use in the U.S. EEZ.
                (Status Quo/No Action)
   Pelagic Longline w/i the U.S. EEZ Alternative 2:                              NC                           NC
    Establishes a general prohibition on the use of
   pelagic longline gear in the U.S. EEZ. (Proposed
                        Action)
   Pelagic Longline w/i the U.S. EEZ Alternative 3:                             NQ+                          NQ+
Prohibits longlining within the West Coast U.S. EEZ by
   indefinite moratorium, with the potential for re-
evaluation by the Pacific Council following completion
   of a bycatch reduction research program with pre-
  established strict protocols. Must prove negligible
    impact on protected and bycatch species. (Ocean
              Wildlife Campaign Proposal)
   Pelagic Longline w/i the U.S. EEZ Alternative 4:                             NQ+                          NQ+
  Authorizes a limited entry pelagic longline fishery
   for tunas and swordfish within the U.S. EEZ, with
  effort and area restrictions, to evaluate longline
 gear as an alternative to DGN gear to reduce bycatch
      or bycatch mortality and protected species
           interactions. (Industry Proposal)
   Pelagic Longline w/i the U.S. EEZ Alternative 5:                             NQ+                          NQ+
  Prohibits longlining within the West Coast U.S. EEZ
  with the potential for re-evaluation by the Pacific
   Council following completion of a tuna-swordfish-
    bycatch research experiment carried out under a
  qualified EFP to determine if longline gear can be
   fished in ways that produce bycatch and protected
species interaction levels that are significantly less
 than by drift gillnets (a=0.05). (Plan Team Proposal)
----------------------------------------------------------------------------------------------------------------

    There are not expected to be any financial impacts associated with 
Alternative 2 because it essentially represents the status quo. It 
would eliminate the Oregon longline fishery, authorized outside 25 
nautical miles under the State's developmental fisheries program permit 
system. However, there are no active Oregon permits at the present 
time. This alternative would also eliminate the potential opportunity 
now available to West Coast based commercial fishermen for fishing off 
Oregon and California and landing in Oregon, which is currently not 
being exercised. The other alternatives offer potential increases in 
financial profits if it can be scientifically determined that there 
would not be an adverse impact on bycatch and protected species 
interactions.
    Beyond the U.S. EEZ, the FMP applies to West Coast-based longline 
vessels all of the restrictions applied to Hawaii-based longline 
vessels when fishing west of 150[deg] W. long., but applies selected 
restrictions to vessels fishing east of 150[deg] W. long., which allows 
West Coast-based vessels to target swordfish east of 150[deg] W. long. 
(except for a partial closure in April and May). Restrictions limit sea 
turtle and seabird interactions and improve monitoring of the fishery. 
Swordfish targeting would be allowed east of 150[deg] W. long. for most 
of the year under the FMP, though the ESA section 7 consultations may 
result in a finding of jeopardy to one or more species listed under the 
ESA and alternative management measures may be necessary. The 
objectives of the proposed action provide for a longline fishing 
opportunity, giving due consideration to traditional participants in 
the fisheries, while providing adequate protection to sea turtles and 
seabirds.
    A total of 38 vessels participated in the West Coast-based, high 
seas pelagic longline fishery during 2001 (see table below). All of 
these vessels would be considered small businesses under the SBA 
standards. Therefore, there would be no financial impacts resulting 
from disproportionality between small and large vessels under the 
proposed action.

          Total ex-vessel revenue and dependence on swordfish for the 38 West Coast- vessels with high seas pelagic longline landings in 2001.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Dependence on High Seas
                                                                    Longline Caught Swordfish     Average Total Ex-vessel      Average Percent Longline
                        Number of Vessels                             (category of swordfish         Revenue ($/vessel)          Swordfish (swordfish
                                                                      revenue/total revenue)                                    revenue/total revenue)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                4                                                 < 50 percent                     $228,951                32.57 percent
                                3                                                50-70 percent                     $170,067                60.99 percent
                                3                                     70-80 percent                     $222,089                76.66 percent
                                4                                     80-90 percent                     $258,335                86.77 percent
                                13                                    90-95 percent                     $182,211                93.26 percent
                                11                                       95 percent                     $219,885                97.57 percent
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 68842]]

    Financial impacts of each high seas pelagic longline regulatory 
alternative were evaluated based on incremental changes from the status 
quo; i.e., the difference between pelagic longline ex-vessel private 
profits under the proposed action and pelagic longline private profits 
under Alternative 1, the status quo. The following table reports the 
estimated incremental changes in short-run financial profits for 
pelagic longline vessels for each regulatory alternative relative to 
the status quo. Financial impacts are evaluated as the present value of 
changes in short-run financial profits projected over a 25 year time 
period, discounted at 7 percent and 4 percent discount rates. The 
annual average change in short-run financial profits is also shown. The 
changes in financial profit were estimated using cost and earnings data 
voluntarily provided by industry members. Owners of 6 vessels provided 
2 years of data each; this was about 25 percent of the active fleet in 
that period.
    Under the status quo, the FMP would not impose regulations on the 
high seas, West Coast-based pelagic longline fishery. Fishing could 
continue without regulations until regulations are established under 
other authorities. Therefore, without the FMP, the future of the West 
Coast-based pelagic longline fishery operating on the high seas is 
expected to be different from recent conditions. Swordfish is the 
target species of this fishery, and swordfish sets may be prohibited; 
gear restrictions (no light sticks, minimum depth of sets, line 
clippers to release sea turtles) would apply; and seabird avoidance 
methods would be required. Longline fishing targeting tuna on the high 
seas out of West Coast ports might then be an alternative if swordfish 
targeting is prohibited, but current participants in the fishery 
indicate that without being able to target swordfish, the high seas 
longline fishery originating from West Coast ports would cease to 
exist. In view of this likelihood, the estimated financial impacts 
relative to Alternative 1 assume that regulations are likely in the 
future that would prohibit West Coast-based pelagic longliners from 
targeting swordfish on the high seas, and that under those 
circumstances the fishery would cease to exist.
    Alternative 2 would allow the fishery to continue under selected 
restrictions, and the financial impact of Alternative 2, shown below, 
is based on a projection of current private profits in the fishery. 
Estimates of current private profits do not include the private costs 
that might be incurred in adopting turtle and seabird saving measures, 
placement of observers, and the installation and use of VMS, and any 
lost revenues from being unable to fish from 15[deg] N. lat. to the 
equator, and from 145[deg] W. long. to 180[deg] W. long. during April 
and May. Therefore, private profits under Alternative 2 in the table 
below may be overstated. While some West Coast-based, high seas pelagic 
longliners harvest species other than swordfish, no attempt was made to 
evaluate potential changes in fishing strategies by these vessels in 
response to different harvest opportunities under each of the 
regulatory alternatives, and what this would mean in terms of operating 
costs and ex-vessel revenues under alternative fishing strategies. 
Alternative 2 was chosen because the Pacific Council concluded that it 
could not propose elimination of such a valuable fishery without clear 
indication that the takes of sea turtles would be excessive.
    Alternative 3 would prohibit swordfish targeting with 
implementation of the FMP. Under Alternative 3 the assumption is that 
the fishery would disappear in the long run, in which case there is no 
difference from the status quo.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
   High Seas Pelagic Longline Alternative 1: States'                             NC                           NC
    regulations would apply to longline fishing and
   landings and Federal regulations may be developed
 under other authorities. Vessels would have to obtain
 HSFCA permits and file HSFCA logbooks, as is now the
             case. (Status Quo/No Action)
 High Seas Pelagic Longline Alternative 2: Applies to                            NA                   $6,712,558
   West Coast-based longline vessels fishing west of
 150[deg] W longitude all of the restrictions applied
to Hawaii-based longline vessels, but east of 150[deg]
 W long., applies selected restrictions, allowing West
 Coast-based vessels to target swordfish east of that
                line. (Proposed Action)
                7-percent Discount Rate                                 $78,225,581                           NA
                4-percent Discount Rate                                $105,645,527                           NA
 High Seas Pelagic Longline Alternative 3: Applies to                            NC                           NC
West Coast-based longline vessels all conservation and
 management measures applied to Hawaii-based longline
vessels to control sea turtle and seabird interactions
              and to monitor the fishery.
                7-percent Discount Rate                                          NC                           NC
                4-percent Discount Rate                                          NC                           NC
----------------------------------------------------------------------------------------------------------------

    Alternative 2 would maintain the fishery, but impose some slight 
additional costs on West Coast-based longliners targeting swordfish on 
the high seas. Fishermen would have to incur some of the cost of 
adopting turtle and seabird saving measures, accommodating observers 
and using monitoring equipment such as a vessel monitoring system. 
Therefore, under Alternative 2 there would be a slight reduction in 
annual short-run, financial profits from those reported above. There 
may also be reductions in swordfish catch rates due to the alternative 
of turtle and seabird mitigation measures. This could further reduce 
short-run, financial profits. If subsequent analyses prove that 
swordfish longlining on the fishing grounds of the West Coast-based, 
high seas pelagic longline fleet results in less impact on turtles and 
other protected species (or that these interactions can be avoided), 
its further development could lead to increased short run financial 
profits. If on the other hand, subsequent analyses prove that swordfish 
longlining in the fishing grounds in the eastern north Pacific action 
area has potential for the same or greater impact on protected species, 
the fishery may not be able to continue operating unless ways to 
prevent jeopardy to protected species can be developed. In the latter 
case there are likely to be additional harvesting costs

[[Page 68843]]

involved to perform the prevention measures which in the absence of any 
improvements in harvest rates, or other efficiency gains, would reduce 
short-run financial profits.
    The fishery will probably be subject to regulations promulgated 
under other authorities, which are expected to result in its 
disappearance in time. This is reflected in the long-term status quo, 
Alternative 1, where financial profits become zero with a phase out of 
the fishery. In the near term however, the fishery may persist under 
existing state regulations, in which case short-run financial profits 
are expected to be $6.8 million per year under the status quo. These 
are the same as the annual average financial profits that would be 
expected under Alternative 2 minus the cost of adopting turtle and 
seabird saving measures, accommodating observers and using monitoring 
equipment such as vessel monitoring systems. Short and long-term 
profits would disappear under Alternative 3 with the prohibition on 
targeting swordfish. Therefore, in the long term, Alternative 3 is the 
same as the status quo.
    The FMP opens the entire U.S. EEZ to purse seine fishing, although 
there has been little interest in such fishing for highly migratory 
species off Oregon and Washington. The objectives of the proposed 
action are to provide for additional purse seine fishing opportunities. 
There were 27 vessels on average participating in the West Coast-based, 
coastal purse seine fishery during the 1995-99 period. All of these 
vessels would be considered small businesses under the SBA standards. 
Therefore, there would be no financial impacts resulting from 
disproportionality between small and large vessels under the proposed 
action.
    Financial impacts of each purse seine regulatory alternative were 
evaluated based on incremental changes from the status quo; i.e., the 
difference between expected purse seine ex-vessel private profits under 
the proposed action and private profits under the status quo. The 
following table reports the estimated incremental qualitative changes 
in short-run financial profits for pelagic longline vessels for each 
regulatory alternative relative to the status quo. There are no cost 
and earnings data available for purse seine fishing for highly 
migratory species off Oregon and Washington.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
 Purse Seine Alternative 1: State area closures would                            NC                           NC
  remain in effect under states' authorities. (Status
                    Quo/No Action)
 Purse Seine Alternative 2: Opens the entire U.S. EEZ                           NQ+                          NQ+
       to purse seine fishing. (Proposed Action)
 Purse Seine Alternative 3: Closes the area within the                          NQ+                          NQ+
  U.S. EEZ north of 45[deg] N latitude to purse seine
   fishing to address bycatch and protected species
    concerns, and possible adverse impacts on other
                      fisheries.
  Purse Seine Alternative 4: Closes the U.S. EEZ off                            NQ+                          NQ+
 Washington to purse seine fishing, but allows it off
                Oregon and California.
----------------------------------------------------------------------------------------------------------------

    The proposed action will have little impact on private profits 
because there has been virtually no purse seine fishing for highly 
migratory species in the waters proposed to be closed.
    Northern bluefin tuna do not generally occur in significant numbers 
in the Pacific Northwest except during periods of elevated water 
temperature. Thus, there would likely only be an increase in purse 
seine fishing activity for northern bluefin tuna during El Nino-like 
conditions. These conditions, by providing an additional fishing 
opportunity, would likely increase short-run financial profits for 
purse seiners that currently participate in the Oregon-Washington 
sardine fishery. Under exceptionally good bluefin fishing in Oregon-
Washington waters, this opportunity might extend to California-based 
purse seiners.
    Alternatives 3 and 4 would preclude existing fishing opportunities 
above 45[deg] N. lat. for California and Oregon vessels. This could 
reduce their potential financial profits in years of exceptionally good 
bluefin fishing in these waters.
    It is noted that only 2 purse seine vessels were recorded as 
landing HMS into a West Coast port in 2002. NMFS does not expect the 
development of a significant HMS purse seine fishery on the West Coast, 
due to lack of processing capability and markets, and the unlikelihood 
of new investment in new processing capability under the current price 
structure.
    The FMP would prohibit the sale of striped marlin by all vessels. 
The objectives are to provide for continued recreational fishing 
opportunities. Prohibiting sale removes the incentive for commercial 
fishermen to take striped marlin.
    Financial impacts of each regulatory alternative pertaining to the 
sale of striped marlin were evaluated based on incremental changes from 
the status quo; i.e., the difference between expected ex-vessel private 
profits under the proposed action and private profits under the status 
quo. The following table reports the estimated incremental qualitative 
changes in short-run financial profits for each regulatory alternative 
relative to the status quo.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
Marlin Sales Alternative 1: The sale of striped marlin                           NC                           NC
 would not be prohibited by Federal regulation in this
 FMP, but would continue to be prohibited by the State
         of California. (Status Quo/No Action)
   Marlin Sales Alternative 2: Prohibits the sale of                             NC                           NC
  striped marlin by vessels under PFMC jurisdiction.
                   (Proposed Action)
----------------------------------------------------------------------------------------------------------------


[[Page 68844]]

    The proposed action will have little impact on private profits 
because there is virtually no change from the status quo. Striped 
marlin cannot now be sold, so no revenue impacts to the fishermen will 
ensue.
    The FMP would require a Federal permit with a specific endorsement 
for each gear type (harpoon, drift gillnet, surface hook and line, 
purse seine, and pelagic longline). The permits and endorsements are 
subject to sanctions, including revocation, as provided by Section 308 
(g) of the Magnuson-Stevens Act. Permits are a standard tool used to 
support management by facilitating collection of biological, economic 
or social data, facilitating enforcement of laws and regulations, 
identifying those who would be affected by actions to prevent or reduce 
excess capacity in the fishery, and providing information to meet 
international obligations.
    A review of NMFS data bases indicates that there are an estimated 
1,337 vessels likely to harvest highly migratory species. All vessels 
would be considered small businesses under the SBA standards. 
Therefore, there would be no disproportionate financial impacts between 
small and large vessels under the proposed action. The proposed action 
is duplicative in the sense that permit requirements implemented for 
other purposes (e.g., HSFCA) may require a vessel to have more than one 
permit to fish highly migratory species.
    Financial impacts of each regulatory alternative pertaining to 
commercial fishing permits were evaluated based on incremental changes 
from the status quo; i.e., the difference between expected ex-vessel 
private profits under the proposed action and private profits under the 
status quo. The following table reports the estimated incremental 
qualitative changes in short-run financial profits for each regulatory 
alternative relative to the status quo. The annual average change in 
short-run financial profits is also shown.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
    Commercial Permit Alternative 1: Require no new                              NC                           NC
   Federal permits. Federal permits under other laws
     would remain in place, as would state permit
         requirements. (Status Quo/No Action)
  Commercial Permit Alternative 2: Requires a Federal                           NQ-                          NQ-
permit for HMS vessels with a specific endorsement for
 each gear type (harpoon, DGN, surface hook and line,
 purse seine, and pelagic longline). The permit is to
 be issued to a vessel owner for each specific fishing
   vessel used in commercial HMS fishing. (Proposed
                        Action)
  Commercial Permit Alternative 3: Requires a Federal                           NQ-                          NQ-
   permit for all vessels engaged in commercial HMS
 fisheries within and outside the U.S. EEZ. One permit
   would cover all HMS fisheries for a given vessel.
  Commercial Permit Alternative 4: Requires a Federal                           NQ-                          NQ-
 permit for all vessels engaged in selected commercial
  fisheries. Initial candidates for permits would be
    vessels engaged in DGN and longline fisheries.
----------------------------------------------------------------------------------------------------------------

    Under Alternative 2 there would be a slight reduction in financial 
profits due to the cost of acquiring a commercial permit. Estimates of 
permit costs for commercial vessels are about $60.00 per vessel; a $40 
permit fee and $20 for the time involved in filling out or confirming 
information on the permit registration form. The same costs would be 
entailed under Alternatives 3 and 4, no matter what the scope of the 
permit. This is an additional fixed cost, and although minor, may be 
disproportionate across smaller vessels engaged in HMS fisheries.
    The FMP requires a Federal permit for all charter or commercial 
passenger carrying fishing vessels (CPFV) from which recreational 
fishers pursue highly migratory species, but an existing state permit 
or license for recreational vessels could meet this requirement. As 
with commercial fishing permits, this measure would provide a mechanism 
for identifying the scope of the recreational fishery and the 
participants so that data collection and research could be more focused 
and effective. There are approximately 300 charter and CPFV vessels on 
the West Coast. All these vessels would be considered small businesses 
under the SBA standards; therefore, there would be no financial impacts 
resulting from disproportionality between small and large vessels under 
the proposed action. The proposed action would not require new 
reporting, record-keeping, or other compliance requirements. However, 
permit processing and periodic permit renewal would be necessary under 
state laws and regulations.
    Financial impacts of each regulatory alternative pertaining to 
recreational fishing permits were evaluated based on incremental 
changes from the status quo; i.e., the difference between expected ex-
vessel private profits under the proposed action and private profits 
under the status quo. The following table reports the estimated 
incremental qualitative changes in short-run financial profits for each 
regulatory alternative relative to the status quo. The annual average 
change in short-run financial profits is also shown.

[[Page 68845]]



----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
   Recreational Permit Alternative 1 Requires no new                             NC                           NC
 Federal permits for recreational vessels, private or
         party/charter. (Status Quo/No Action)
 Recreational Permit Alternative 2: Requires a Federal                          NQ-                          NQ-
    permit for all CPFVs that fish for HMS, but an
   existing state permit or license for recreational
   vessels could meet this requirement. The Pacific
 Council would, however, request states to incorporate
in their existing CPFV permit systems an allowance for
    an HMS species endorsement on permits, so that
  statistics could be gathered on that segment of the
            HMS fishery. (Proposed Action)
Recreational Permit Alternative 3: Requires a separate                          NQ-                          NQ-
   Federal permit for all CPFVs that fish for HMS; a
      state permit could not be used to fill this
           requirement, as in Alternative 2.
 Recreational Permit Alternative 4: Requires a Federal                          NQ-                          NQ-
 permit for all recreational fishing vessels (private,
 party and charter/CPFV) that fish for HMS within and
                 outside the U.S. EEZ.
----------------------------------------------------------------------------------------------------------------

    Under Alternative 2, recreational vessels without a state permit 
would experience a slight reduction in financial profits due to the 
cost of acquiring a Federal recreational permit, which is estimated to 
be about $50.00 per vessel. This is an additional fixed cost, and even 
though minor, may be disproportionate across smaller vessels engaged in 
commercial passenger recreational fishing for highly migratory species. 
The same costs would be entailed under Alternatives 3 and 4, no matter 
what the scope of the permit. Alternative 3 could be somewhat 
duplicative if it were to overlap state requirements. If a vessel has a 
choice between a state and a federally issued permit to meet this 
requirement, there could be some cost savings, improved financial 
profits, if there is a difference in costs between state and Federal 
permits.
    The FMP would require all commercial and recreational party or 
charter fishing vessels to maintain and submit logbooks to NMFS. State 
or existing Federal logbooks could meet this requirement as long as 
essential data elements are present and data are available to NMFS 
subject to a data exchange agreement. This measure would facilitate the 
monitoring of commercial and recreational vessel activities and enhance 
data collection. This measure would effect about 1,354 commercial and 
recreational vessels. The number of vessels for which this requirement 
poses an increased record keeping burden is unknown, but many vessels 
already are required to maintain state or existing Federal logbooks 
that would satisfy this requirement. The proposed action would impose 
new reporting and record-keeping requirements for some vessels. The 
proposed action is designed to avoid duplication of existing Federal 
reporting requirements.
    Financial impacts of each regulatory alternative pertaining to 
fishing vessel reporting requirements were evaluated based on 
incremental changes from the status quo; i.e., the difference between 
expected ex-vessel private profits under the proposed action and 
private profits under the status quo. The following table reports the 
estimated incremental qualitative changes in short-run financial 
profits for each regulatory alternative relative to the status quo. The 
annual average change in short-run financial profits is also shown.

----------------------------------------------------------------------------------------------------------------
                                                        Change in the Present Value
                                                           of Short-Run Financial      Average Annual Change in
                      Alternative                         Profits Relative to the    Short-Run Financial Profits
                                                          Status Quo (25-Year Time    Relative to the Status Quo
                                                                  Horizon)
----------------------------------------------------------------------------------------------------------------
 Reporting Requirements Alternative 1: There would be                            NC                           NC
 no new Federal requirements for reporting, including
    Federal provisions for filling out Far Offshore
   Fishing Declarations. Existing Federal reporting
 requirements (e.g., HSFCA reports for fishing on the
   high seas) and state reporting requirements would
             apply. (Status Quo/No Action)
  Reporting Requirements Alternative 2: Requires all                            NQ-                          NQ-
   commercial and recreational party or charter/CPFV
  fishing vessels to maintain and submit logbooks to
  NMFS. State or existing Federal logbooks could meet
  this requirement as long as essential data elements
are present, and data are available to NMFS subject to
     a data exchange agreement. (Proposed Action)
    Reporting Requirements Alternative 3 Limits new                             NQ-                          NQ-
  Federal reporting requirements to those commercial
 vessels that are not already required to report under
                existing Federal laws.
----------------------------------------------------------------------------------------------------------------

    Under Alternative 2 there would be a slight reduction in financial 
profits due to the cost of satisfying the proposed reporting 
requirements for logbooks for those vessels that do not already meet 
these requirements. There are also additional reporting requirements 
associated with the use of vessel monitoring systems and vessel 
markings. Vessel monitoring systems would be required of longline 
vessels, but there are not expected to be any costs to vessels under 
this requirement. All vessels would be required to have identifying 
numbers, which would impose some additional fixed costs, and although 
minor, may be disproportionate across smaller vessels engaged in 
fisheries for highly migratory species. Under Alternative 3, financial 
impacts would be less because many vessels already maintain logbooks 
under existing Federal laws.

[[Page 68846]]

    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). These requirements will be submitted to OMB for approval. The 
public reporting burden for these requirements is estimated to be 5 
minutes for a confirmation of records for a permit application, 10 
minutes to correct a record for a permit application, 30 minutes for a 
new permit application, 5 minutes for filling out a log each day, and 
45 minutes to affix the official number of a vessel to its bow and 
weather deck. In addition, for longline vessels, the reporting burden 
includes 4 hours for installation of a vessel monitoring system, 2 
hours for maintenance of the system, and 24 seconds for electronic 
reporting via the satellite based vessel monitoring system. These 
estimates include the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Public comment is sought regarding whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility, the accuracy of the burden estimate, ways to 
enhance the quality, utility, and clarity of the information to be 
collected, and ways to minimize the burden of the collection of 
information, including through the use of automated information 
technology. Written comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this rule may be submitted to, Svein Fougner, Assistant 
Administrator for Sustainable Fisheries, NMFS, Southwest Region (SEE 
ADDRESSES) and by e-mail to [email protected], or fax to (202) 
395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirement of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    A formal consultation under the ESA was initiated on September 24, 
2003. Based on the conclusions of the consultation, the Regional 
Administrator will determine if fishing activities under this proposed 
rule are likely to affect adversely endangered or threatened species or 
their critical habitat under NMFS jurisdiction.
    A formal consultation with the Fish and Wildlife Service (FWS) 
under the ESA was initiated by NMFS on September 22, 2003. Based on the 
consultation, the FWS will determine if fishing activities under this 
proposed rule are likely to affect adversely endangered or threatened 
species or their critical habitat under its jurisdiction.
    The Regional Administrator has determined that, based on the 
information and analyses in the FMP, fishing activities conducted under 
this proposed rule would have no adverse impacts on marine mammals. 
Regulations promulgated under MMPA authority to implement a Pacific 
Offshore Cetacean Take Reduction Plan would remain in effect.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.

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, 2003.
William T. Hogarth,
Assistant Administrator, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 223, 50 CFR 
part 224, and 50 CFR part 660 are proposed to be amended as follows:

50 CFR Chapter VI

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.12 also 
issued under 16 U.S.C. 1361 et seq.
    2. In Sec.  223.206, paragraph (d)(6) is removed and reserved.

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    3. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
    4. In Sec.  224.104, paragraph (c) is revised to read as follows:


Sec.  224.104  Special requirements for fishing activities to protect 
endangered sea turtles.

* * * * *
    (c) Special prohibitions relating to leatherback sea turtles are 
provided at Sec.  223.206(d)(2)(iv) and Sec.  660.713.

PART 660--FISHERIES OFF THE WEST COAST AND IN THE WESTERN PACIFIC

    5. The authority citation for part 660 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    6. Add subpart K to read as follows:

Subpart K-Highly Migratory Fisheries

Sec.
660.701 Purpose and scope.
660.702 Definitions.
660.703 Management area.
660.704 Vessel identification.
660.705 Prohibitions.
660.706 Treaty Indian rights.
660.707 Permits.
660.708 Reporting.
660.709 Annual specifications.
660.710 Closure of directed fishery.
660.711 General catch restrictions.
660.712 Longline.
660.713 Drift net.
660.714 Purse seine.
660.715 Harpoon.
660.716 Surface hook-and-line.
660.717 Framework for revising regulations.
660.718 Exempted fishing.
660.719 Scientific observers.

Subpart K--Highly Migratory Fisheries


Sec.  660.701  Purpose and scope.

    This subpart implements the Fishery Management Plan for U.S. West 
Coast Fisheries for Highly Migratory Species (FMP). These regulations 
govern commercial and recreational vessels based on the West Coast and 
fishing for HMS seaward of the coasts of Washington, Oregon, and 
California.


Sec.  660.702  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 
mainline and all branch 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.
    Closure, when referring to closure of a fishery, means that taking 
and retaining, possessing, or landing the particular species or species 
group is prohibited.
    Commercial fishing means (1) Fishing by a person who possesses a 
commercial

[[Page 68847]]

fishing license or is required by law to possess such license issued by 
one of the states or the Federal Government as a prerequisite to 
taking, landing and/or sale; or
    (2) Fishing that results in or can be reasonably expected to result 
in sale, barter, trade or other disposition of fish for other than 
personal consumption.
    Commercial fishing gear means the following types of gear and 
equipment used in the highly migratory species fisheries:
    (1) Harpoon. Gear consisting of a pointed dart or iron attached to 
the end of a pole or stick that is propelled only by hand and not by 
mechanical means.
    (2) Surface hook-and-line. Fishing gear, other than longline gear, 
with one or more hooks attached to one or more lines (includes troll, 
rod and reel, handline, albacore jig, live bait, and bait boat). 
Surface hook and line is always attached to the vessel.
    (3) Drift gillnet. A panel of netting, 14 inch stretched mesh or 
greater, suspended vertically in the water by floats along the top and 
weights along the bottom. A drift gillnet is not stationary or anchored 
to the bottom.
    (4) Purse seine. An encircling net that may be closed by a purse 
line threaded through the bottom of the net. Purse seine gear includes 
ring net, drum purse seine, and lampara nets.
    (5) Pelagic longline. A main line that is suspended horizontally in 
the water column and not stationary or anchored, and from which dropper 
lines with hooks (gangions) are attached. Legal longline gear also 
includes basket-style longline gear.
    Council means the Pacific Fishery Management Council, including its 
Highly Migratory Species Management Team (HMSMT), Scientific and 
Statistical Committee (SSC), Highly Migratory Species Advisory Subpanel 
(HMSAS), and any other committee established by the Council.
    Fishing trip is a period of time between landings when fishing is 
conducted.
    Fishing year is the year beginning at 0801 GMT (0001 local time) on 
April 1 and ending at 0800 GMT on March 31 (2400 local time on 
September 30) of the following year.
    Fishery management area means the U.S. EEZ off the coasts of 
Washington, Oregon, and California between 3 and 200 nautical miles 
offshore, and bounded on the north by the Provisional International 
Boundary between the United States and Canada, and bounded on the south 
by the International Boundary between the United States and Mexico.
    Harvest guideline means a specified numerical harvest objective 
that is not a quota. Attainment of a harvest guideline does not require 
closure of a fishery.
    Highly Migratory species (HMS) means species managed by the FMP, 
specifically:
Billfish/Swordfish:
    striped marlin (Tetrapturus audax)
    swordfish (Xiphias gladius)
Sharks:
    common thresher shark (Alopias vulpinus)
    pelagic thresher shark (Alopias pelagicus)
    bigeye thresher shark (Alopias superciliosus)
    shortfin mako or bonito shark (Isurus oxyrinchus)
    blue shark (Prionace glauca)
Tunas:
    north Pacific albacore (Thunnus alalunga)
    yellowfin tuna (Thunnus albacares)
    bigeye tuna (Thunnus obesus)
    skipjack tuna (Katsuwonus pelamis)
    northern bluefin tuna (Thunnus orientalis)
Other:
    dorado or dolphinfish (Coryphaena hippurus)
    Highly Migratory Species Advisory Subpanel (HMSAS) means the 
individuals comprised of members of the fishing industry and public 
appointed by the Council to review proposed actions for managing highly 
migratory species fisheries.
    Highly Migratory Species Fishery Management Plan (FMP) means the 
Fishery Management Plan for the U.S. West Coast Fisheries for Highly 
Migratory Species developed by the Pacific Fishery Management Council 
and approved by the Secretary and amendments to the FMP.
    Highly Migratory Species Management Team (HMSMT) means the 
individuals appointed by the Council to review, analyze, and develop 
management measures for highly migratory species fisheries.
    Incidental catch or incidental species means HMS caught while 
fishing for the primary purpose of catching other species with gear not 
authorized by the FMP.
    Land or landing means offloading fish from a fishing vessel or 
arriving in port to begin offloading fish or causing fish to be 
offloaded from a fishing vessel.
    Mesh size means the opening between opposing knots in a net. 
Minimum mesh size means the smallest distance allowed between the 
inside of one knot to the inside of the opposing knot when the mesh is 
stretched, regardless of twine size.
    Offloading means removing HMS from a vessel.
    Permit holder means a permit owner.
    Permit owner means a person who owns an HMS permit for a specific 
vessel fishing with specific authorized fishing gear.
    Person, as it applies to fishing conducted under this subpart, 
means any individual, corporation, partnership, association or other 
entity (whether or not organized or existing under the laws of any 
state), and any Federal, state, or local government, or any entity of 
any such government that is eligible to own a documented vessel under 
the terms of 46 U.S.C. 12102(a).
    Processing or to process means the preparation or packaging of HMS 
to render it suitable for human consumption, industrial uses or long-
term storage, including, but not limited to, cooking, canning, smoking, 
salting, drying, filleting, freezing, or rendering into meal or oil, 
but does not mean heading and gutting unless additional preparation is 
done.
    Prohibited species means those species and species groups whose 
retention is prohibited unless authorized by other applicable law (for 
example, to allow for examination by an authorized observer or to 
return tagged fish as specified by the tagging agency).
    Quota means a specified numerical harvest objective, the attainment 
(or expected attainment) of which causes closure of the fishery for 
that species or species group.
    Recreational fishing means fishing with authorized recreational 
fishing gear for personal use only and not for sale, barter or trade of 
all or any part of the catch.
    Recreational charter vessel means a vessel that carries fee-paying 
passengers for the purpose of recreational fishing.
    Regional Administrator means the Administrator, Southwest Region, 
NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or 
a designee.
    Special Agent-In-Charge (SAC) means the Special Agent-In-Charge, 
NMFS, Office of Enforcement, Southwest Region, or a designee of the 
Special Agent-In-Charge.
    Sustainable Fisheries Division (SFD) means the Assistant Regional 
Administrator for Sustainable Fisheries, Southwest Region, NMFS, or a 
designee.
    Transship means offloading or otherwise transferring HMS or 
products thereof to a receiving vessel.
    Vessel monitoring system unit (VMS unit) means the hardware and 
software

[[Page 68848]]

equipment owned by NMFS, installed on vessels by NMFS, and required by 
Sec. 660.712(d) to track and transmit the positions of fishing vessels.


Sec.  660.703  Management area.

    The fishery management area for the regulation of fishing for HMS 
comprises the waters of the U.S. EEZ as defined in Sec. 660.402 and the 
high seas seaward of the U.S. EEZ to the extent persons fishing with 
permits issued under this subpart are active in those areas.


Sec.  660.704  Vessel identification.

    (a) Official number. Each fishing vessel subject to this subpart 
must display its official number on the port and starboard sides of the 
deckhouse or hull, and on an appropriate weather deck so as to be 
visible from enforcement vessels and aircraft.
    (b) Numerals. The official number must be affixed to each vessel 
subject to this subpart in block Arabic numerals at least 14 inches 
(35.56 cm) in height. Markings must be legible and of a color that 
contrasts with the background.


Sec.  660.705  Prohibitions.

    In addition to the general prohibitions specified in Sec.  600.725 
of this chapter, it is unlawful for any person to do any of the 
following:
    (a) Fish for HMS in the U.S. EEZ off the Pacific coast without a 
permit issued under Sec.  660.707 for the use of authorized commercial 
fishing gear.
    (b) Fish with gear in any closed area in which the use of such gear 
is prohibited under this subpart.
    (c) Land HMS at Pacific coast ports without a permit issued under 
Sec.  600.707 for the use of authorized fishing gear.
    (d) Sell HMS without an applicable commercial state fishery 
license.
    (e) When fishing for HMS, fail to return a prohibited species to 
the sea immediately with a minimum of injury.
    (f) Falsify or fail to affix and maintain vessel markings as 
required by Sec.  660.704.
    (g) Fish for HMS in violation of any terms or conditions attached 
to an exempted fishing permit issued under Sec.  600.745 of this 
chapter or by Sec.  660.718.
    (h) When a directed fishery has been closed for a specific species, 
take and retain, possess, or land that species after the closure date.
    (i) Refuse to submit fishing gear or fish subject to such person's 
control to inspection by an authorized officer, or to interfere with or 
prevent, by any means, such an inspection.
    (j) Falsify or fail to make and/or file any and all reports of 
fishing, landing, or any other activity involving HMS, containing all 
data, and in the exact manner, required by the applicable state law, as 
specified in Sec.  660.708(b).
    (k) Fail to carry aboard a vessel that vessel's permit issued under 
Sec.  660.707 or exempted fishing permit issued under Sec.  660.718.
    (l) Fail to carry a VMS unit as required under Sec.  660.712(d).
    (m) Interfere with, tamper with, alter, damage, disable, or impede 
the operation of a VMS unit or to attempt any of the same; or to move 
or remove a VMS unit without the prior permission of the SAC.
    (n) Make a false statement, oral or written, to an authorized 
officer, regarding the use, operation, or maintenance of a VMS unit.
    (o) Fish for, catch, or harvest HMS with longline gear without a 
VMS unit on board the vessel after installation of the VMS unit by 
NMFS.
    (p) Possess HMS harvested with longline gear on board a vessel 
without a VMS unit after NMFS has installed the VMS unit on that 
vessel.
    (q) Direct fishing effort toward the harvest of swordfish (Xiphias 
gladius) using longline gear deployed west of 150[deg] W. long. and 
north of the equator (0[deg] lat.) on a vessel registered for use of 
longline gear in violation of Sec.  660.712(a)(2).
    (r) Possess a light stick on board a longline vessel when fishing 
west of 150[deg] W. long. and north of the equator (0[deg] lat.) in 
violation of Sec.  660.712(a)(7)
    (s) Possess more than 10 swordfish on board a longline vessel from 
a fishing trip where any part of the trip included fishing west of 
150[deg] W. long. and north of the equator (0[deg] lat.) in violation 
of Sec.  660.712(a)(10).
    (t) Interfere with, impede, delay, or prevent the installation, 
maintenance, repair, inspection, or removal of a VMS unit.
    (u) Interfere with, impede, delay, or prevent access to a VMS unit 
by a NMFS observer.
    (v) Connect or leave connected additional equipment to a VMS unit 
without the prior approval of the SAC.
    (w) Fish for HMS (including transshipping HMS) with a vessel 
registered for use with longline gear within closed areas or by use of 
unapproved gear configurations in violation of Sec.  660.712(a)(1), 
(a)(2), (a)(4), (a)(5), (a)(6), (a)(8), or (a)(9).
    (x) Fail to use a line setting machine or line shooter, with 
weighted branch lines, to set the main longline when operating a vessel 
that is registered for use of longline gear and equipped with 
monofilament main longline, when making deep sets north of 23[deg] N. 
lat. in violation of Sec.  660.712 (c)(1)(i) and (c)(1)(ii).
    (y) Fail to employ basket-style longline gear such that the 
mainline is deployed slack when operating a vessel registered for use 
of longline gear north of 23[deg] N. lat. in violation of Sec.  
660.712(c)(1)(iii).
    (z) Fail to maintain and use blue dye to prepare thawed bait when 
operating a vessel registered for use of longline gear that is fishing 
north of 23[deg] N. lat., in violation of Sec.  660.712(c)(2) and 
(c)(3).
    (aa) Fail to retain, handle, and discharge fish, fish parts, and 
spent bait strategically when operating a vessel registered for use of 
longline gear that is fishing north of 23[deg] N. lat. in violation of 
Sec.  660.712 (c)(4) through (c)(7).
    (bb) Fail to handle short-tailed albatrosses that are caught by 
pelagic longline gear in a manner that maximizes the probability of 
their long-term survival, in violation of Sec.  660.712(c)(8).
    (cc) Fail to handle seabirds other than short-tailed albatross that 
are caught by pelagic longline gear in a manner that maximizes the 
probability of their long-term survival in violation of Sec.  
660.712(c)(9).
    (dd) Own a longline vessel registered for use of longline gear that 
is engaged in longline fishing for HMS without a valid protected 
species workshop certificate issued by NMFS or a legible copy thereof 
in violation of Sec.  660.712(e)(3).
    (ee) Fish for HMS on a vessel registered for use of longline gear 
without having on board a valid protected species workshop certificate 
issued by NMFS or a legible copy thereof in violation of Sec.  
660.712(e).
    (ff) Fail to carry line clippers, dip nets, and wire or bolt 
cutters on a vessel registered for use as a longline vessel in 
violation of Sec.  660.712(b).
    (gg) Fail to comply with sea turtle handling, resuscitation, and 
release requirements specified in Sec.  660.712(b)(4) through (7) when 
operating a vessel.
    (hh) Fail to comply with seabird take mitigation or handling 
techniques required under Sec.  660.712(c)
    (ii) Fish for HMS with a vessel registered for use as a longline 
vessel without being certified by NMFS for completion of an annual 
protected species workshop as required under Sec.  660.712(e).


Sec.  660.706  Pacific Coast Treaty Indian rights.

    (a) Pacific Coast treaty Indian tribes have treaty rights to 
harvest HMS in their usual and accustomed (u&a) fishing areas in U.S. 
waters.

[[Page 68849]]

    (b) Pacific Coast treaty Indian tribes means the Hoh, Makah, and 
Quileute Indian Tribes and the Quinault Indian Nation.
    (c) The NMFS recognizes the areas set forth below as marine u&a 
fishing grounds of the four Washington coastal tribes. The Makah u&a 
grounds were adjudicated in U.S. v. Washington, 626 F.Supp. 1405, 1466 
(W.D. Wash. 1985), affirmed 730 F.2d 1314 (9th Cir. 1984). The u&a 
grounds of the Quileute, Hoh, and Quinault tribes have been recognized 
administratively by NMFS. See, e.g., 64 FR 24087 (May 5, 1999) (u&a 
grounds for groundfish); 50 CFR 300.64(i) (u&a grounds for halibut). 
The u&a grounds recognized by NMFS may be revised as ordered by a 
Federal court.
    (d) Procedures. The rights referred to in paragraph (a) of this 
section will be implemented by the Secretary of Commerce, after 
consideration of the tribal request, the recommendation of the Council, 
and the comments of the public. The rights will be implemented either 
through an allocation of fish that will be managed by the tribes, or 
through regulations that will apply specifically to the tribal 
fisheries. An allocation or a regulation specific to the tribes shall 
be initiated by a written request from a Pacific Coast treaty Indian 
tribe to the NMFS Northwest Regional Administrator, at least 120 days 
prior to the time the allocation is desired to be effective, and will 
be subject to public review through the Council process. The Secretary 
recognizes the sovereign status and co-manager role of Indian tribes 
over shared Federal and tribal fishery resources. Accordingly, the 
Secretary will develop tribal allocations and regulations in 
consultation with the affected tribe(s) and, insofar as possible, with 
tribal consensus.
    (e) Identification. A valid treaty Indian identification card 
issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence 
that the holder is a member of the Pacific Coast treaty Indian tribe 
named on the card.
    (f) Fishing (on a tribal allocation or under a Federal regulation 
applicable to tribal fisheries) by a member of a Pacific Coast treaty 
Indian tribe within that tribe's usual and accustomed fishing area is 
not subject to provisions of the HMS regulations applicable to non-
treaty fisheries.
    (g) Any member of a Pacific Coast treaty Indian tribe must comply 
with any applicable Federal and tribal laws and regulations, when 
participating in a tribal HMS fishery implemented under paragraph (d) 
above.
    (h) Fishing by a member of a Pacific Coast treaty Indian tribe 
outside that tribe's usual and accustomed fishing area, or for a 
species of HMS not covered by a treaty allocation or applicable Federal 
regulation, is subject to the HMS regulations applicable to non-treaty 
fisheries.


Sec.  660.707  Permits.

    (a) General. This section applies to fishing for HMS off, or 
landing HMS in, the States of California, Oregon, and Washington.
    (1) By January 1, 2005, a commercial fishing vessel or a 
recreational charter vessel of the United States must be registered for 
use under a HMS permit if that vessel is used:
    (i) To engage in commercial fishing for HMS in the U.S. EEZ off the 
States of California, Oregon, and Washington;
    (ii) To carry passengers for hire on a trip to engage in 
recreational fishing; or
    (iii) To land or transship HMS shoreward of the outer boundary of 
the U.S. EEZ off the States of California, Oregon, and Washington.
    (2) The permit must be on board the vessel and available for 
inspection by an authorized officer, except that if the permit was 
issued while the vessel was at sea, this requirement applies only to 
any subsequent trip.
    (3) A permit is valid only for the vessel for which it is 
registered. A permit not registered for use with a particular vessel 
may not be used.
    (4) A permit is valid only for the gear type for which an 
endorsement has been issued for that permit.
    (5) Only a person eligible to own a documented vessel under the 
terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or 
otherwise) an HMS permit with an endorsement for use of gear for 
commercial fishing.
    (b) Application. (1) Following publication of the final rule 
implementing the FMP, NMFS will issue permits to the owners of those 
vessels on a list of vessels obtained from owners previously applying 
for a permit under the authority of the High Seas Fishing Compliance 
Act (HSFCA), the Tuna Conventions Act of 1950, and Sec.  660.21(a) of 
this part.
    (2) All permits issued by NMFS in accordance with paragraph (b)(1) 
of this section will be issued by [date 60 days following effective 
date of final rule] and for commercial fishing vessels will authorize 
the use of specific fishing gear.
    (3) Beginning on [date 60 days following effective date of final 
rule], any vessel owner who has not received an HMS permit but who 
wishes to have such a permit may apply to the SFD for a permit to fish 
for HMS off the coasts of California, Oregon, and Washington by 
obtaining a Southwest Region Federal Fisheries application form from 
the SFD and submitting a completed application. A completed application 
is one that contains all the necessary information and signatures 
required. A copy of the application may be obtained at http://swr.nmfs.noaa.gov/permits.htm.
    (4) A minimum of 15 business days should be allowed for SFD to 
process a permit application. If an incomplete or improperly completed 
application is filed, the applicant will be sent a notice of 
deficiency. If the applicant fails to correct the deficiency within 30 
days following the date of notification, the application will be 
considered abandoned.
    (5) Permits issued under this subpart will remain valid for 5 years 
unless revoked or suspended.
    (6) SFD will issue replacement permits without charge to replace 
lost or mutilated permits. An application for a replacement permit is 
not considered a new application.
    (7) Any permit that has been altered, erased, or mutilated is 
invalid.
    (c) Display. A permit issued under this subpart is required to land 
HMS in any port of California, Oregon and Washington. Any permit issued 
under this subpart, or a facsimile of the permit, must be on board the 
vessel at all times while the vessel is fishing for, taking, retaining, 
possessing, or landing HMS taken when fishing under the permit. Any 
permit issued under this section must be displayed for inspection upon 
request of an authorized officer.
    (d) Sanctions. Procedures governing sanctions and denials are found 
at subpart D of 15 CFR part 904.


Sec.  660.708  Reporting and recordkeeping.

    (a) Logbooks. The operator of any commercial fishing vessel and any 
recreational charter vessel fishing for HMS in the management area must 
maintain on board the vessel an accurate and complete record of catch, 
effort, and other data on logbook report forms provided by the Regional 
Administrator, or by a state agency that has entered into an agreement 
with the Regional Administrator. All information specified on the 
form(s) must be recorded on the forms within 24 hours after the 
completion of each fishing day. The original logbook form for each day 
of the fishing trip must be submitted to either the Regional 
Administrator or the appropriate state management agency within 30 days 
of each landing or transhipment of HMS. Each form must be signed and 
dated by the fishing vessel operator.

[[Page 68850]]

    (1) Logbooks acceptable to meeting the reporting requirements of 
this section may be found at http://swr.nmfs.noaa.gov/logbooks.htm, and 
may include:
    (i) The logbook required under Sec.  300.21 implementing the Tuna 
Conventions Act of 1950;
    (ii) The logbook required under Sec.  660.14 implementing the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region;
    (iii) The logbook required by Sec.  300.17 implementing the High 
Seas Fishing Compliance Act of 1995.
    (iv) Any logbook required by the fishery management agency of the 
States of California, Oregon, or Washington.
    (2) Any holder of a permit who does not maintain and submit a 
logbook for a fishing trip under any of the above authorities must 
obtain a copy of the appropriate logbook from the SFD and maintain and 
submit the form provided by SFD.
    (3) The Regional Administrator may, after consultation with the 
Council, initiate rulemaking to modify the information to be provided 
on the fishing logbook forms.
    (b) Any person who is required to do so by the applicable state law 
must make and/or file, retain, or make available any and all reports of 
HMS containing all data, and in the exact manner, required by the 
applicable state law.


Sec.  660.709  Annual specifications.

    (a) Procedure. (1) In June of each year, the HMSMT will deliver a 
preliminary SAFE report to the Council for all HMS with any necessary 
recommendations for harvest guidelines, quotas or other management 
measures to protect HMS.
    (2) In September of each year, the HMSMT will deliver a final SAFE 
report to the Council. The Council will adopt any necessary harvest 
guidelines, quotas or other management measures for public review.
    (3) In November each year, the Council will take final action to 
propose any necessary harvest guidelines, quotas, or other management 
measures and make its recommendations to NMFS. The proposal shall 
include description of the purpose of the specifications and analyze 
the impacts of implementing such specifications.
    (4) The Regional Administrator will implement through rulemaking 
any necessary and appropriate harvest guidelines, quotas, or other 
management measures based on the SAFE report, recommendations from the 
Council, and the requirements contained in the FMP.
    (b) Fishing seasons for all species will begin on April 1 of each 
year at 0001 hours local time and terminate at 2400 hours local time on 
March 31 of each subsequent year.
    (c) Harvest guidelines, quotas, and other management measures 
announced for a particular year will remain in effect the following 
year unless changed through the public review process described in 
paragraph (a) of this section.
    (d) Irrespective of the normal review process, the Council may 
recommend management action to conserve and manage the fisheries at any 
time. The Council may adopt a management cycle different from the one 
described in this section provided that such change is made by a 
majority vote of the Council and a 6-month notice of the change is 
given. To the extent such recommendations are found necessary and 
reasonable, NMFS will implement them through rulemaking.


Sec.  660.710  Closure of directed fishery.

    (a) When a quota has been taken, the Regional Administrator will 
announce in the Federal Register the date of closure of the fishery for 
the species of concern.
    (b) When a harvest guideline has been taken, the Regional 
Administrator will initiate review of the species of concern according 
to section 8.4.8 of the FMP and publish in the Federal Register any 
necessary and appropriate regulations following Council 
recommendations.


Sec.  660.711  General catch restrictions.

    (a) Prohibited species. HMS under the FMP for which quotas have 
been achieved and the fishery closed are prohibited species. In 
addition, the following are prohibited species:
    (1) Any species of salmon
    (2) Great white shark
    (3) Basking shark
    (4) Megamouth shark
    (5) Pacific halibut
    (b) Incidental landings. HMS caught by gear not authorized by this 
subpart may be landed in incidental amounts as follows:
    (1) Drift gillnet vessels with stretched mesh less than 14 inches 
may land up to 10 HMS per trip, except that no swordfish may be landed.
    (2) Bottom longline vessels may land up to 20 percent by weight of 
management unit sharks in landings of all species or 3 management unit 
sharks, whichever is greater.
    (3) Trawl and pot gear may land up to 1 percent by weight of 
management unit sharks in a landing of all species or 2 management unit 
sharks, whichever is greater.
    (c) Marlin prohibition. The sale of striped marlin is prohibited.
    (d) Sea turtle handling and resuscitation. All sea turtles taken 
incidentally in fishing operations by any HMS vessel must be handled in 
accordance with 50 CFR part 223.206(d)(1).


Sec.  660.712  Longline fishery.

    (a) Gear and fishing restrictions. (1) Owners and operators of 
vessels registered for use of longline gear may not use longline gear 
to fish for or target HMS within the U.S. EEZ.
    (2) Owners and operators of vessels registered for use of longline 
gear may not use longline gear to fish for or target swordfish (Xiphias 
gladius) west of 150[deg] W. long. and north of the equator (0[deg] N. 
lat.).
    (3) A person aboard a vessel registered for use of longline gear 
fishing for HMS west of 150[deg] W. long. and north of the equator 
(0[deg] N. lat.) may not possess or deploy any float line that is 
shorter than or equal to 20 m (65.6 ft or 10.9 fm). As used in this 
paragraph, float line means a line used to suspend the main longline 
beneath a float.
    (4) From April 1 through May 31, owners and operators of vessels 
registered for use of longline gear 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.
    (5) From April 1 through May 31, owners and operators of vessels 
registered for use of longline gear may not receive from another vessel 
HMS 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.
    (6) From April 1 through May 31, owners and operators of vessels 
registered for use of longline gear may not land or transship HMS 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.
    (7) No light stick may be possessed on board a vessel registered 
for use of longline gear during fishing trips that include any fishing 
west of 150[deg] W. long. and north of the equator (0[deg] N. lat.). A 
light stick as used in this paragraph is any type of light emitting 
device, including any flourescent glow bead, chemical, or electrically 
powered light that is affixed underwater to the longline gear.
    (8) When a conventional monofilament longline is deployed in waters 
west of 150[deg] W. long. and north of the equator (0[deg] N. lat.) by 
a vessel registered for use of longline gear, no fewer than 15 branch 
lines may be set

[[Page 68851]]

between any two floats. Vessel operators using basket-style longline 
gear must set a minimum of 10 branch lines between any 2 floats when 
fishing in waters north of the equator.
    (9) Longline gear deployed west of 150[deg] W. long. and north of 
the equator (0[deg] N. lat.) by a vessel registered for use of longline 
gear 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.
    (10) Owners and operators of longline vessels registered for use of 
longline gear may land or posses no more than 10 swordfish from a 
fishing trip where any part of the trip included fishing west of 
150[deg] W. long. and north of the equator (0[deg] N. lat.).
    (b) Sea turtle take mitigation measures. (1) Owners and operators 
of vessels registered for use of longline gear must carry aboard their 
vessels line clippers meeting the minimum design standards specified in 
(b)(2) of this section, dip nets meeting minimum standards specified in 
(b)(3) of this section, and wire or bolt cutters capable of cutting 
through the vessel's hooks. These items must be used to disengage any 
hooked or entangled sea turtles with the least harm possible to the sea 
turtles and as close to the hook as possible in accordance with the 
requirements specified in (b)(4) through (b)(6) of this section.
    (2) Line clippers are intended to cut fishing line as close as 
possible to hooked or entangled sea turtles. NMFS has established 
minimum design standards for line clippers. The Arceneaux line clipper 
(ALC) is a model line clipper that meets these minimum design standards 
and may be fabricated from readily available and low-cost materials 
(see figure 1 of this subpart). The minimum design standards are as 
follows:
    (i) The cutting blade must be curved, recessed, contained in a 
holder, or otherwise afforded some protection to minimize direct 
contact of the cutting surface with sea turtles or users of the cutting 
blade.
    (ii) The blade must be capable of cutting 2.0-2.1 mm monofilament 
line and nylon or polypropylene multistrand material commonly known as 
braided mainline or tarred mainline.
    (iii) The line clipper must have an extended reach handle or pole 
of at least 6 ft (1.82 m).
    (iv) The cutting blade must be securely fastened to the extended 
reach handle or pole to ensure effective deployment and use.
    (3) Dip nets are intended to facilitate safe handling of sea 
turtles and access to sea turtles for purposes of cutting lines in a 
manner that minimizes injury and trauma to sea turtles. The minimum 
design standards for dip nets that meet the requirements of this 
section are:
    (i) The dip net must have an extended reach handle of at least 6 ft 
(1.82 m) of wood or other rigid material able to support a minimum of 
100 lbs (34.1 kg) without breaking or significant bending or 
distortion.
    (ii) The dip net must have a net hoop of at least 31 inches (78.74 
cm) inside diameter and a bag depth of at least 38 inches (96.52 cm). 
The bag mesh openings may be no more than 3 inches x 3 inches (7.62 cm 
x 7.62 cm).
    (4) All incidentally taken sea turtles brought aboard for dehooking 
and/or disentanglement must be handled in a manner to minimize injury 
and promote post-hooking survival.
    (i) When practicable, comatose sea turtles must be brought on board 
immediately, with a minimum of injury, and handled in accordance with 
the procedures specified in paragraphs (b)(5) and (b)(6) of this 
section.
    (ii) If a sea turtle is too large or hooked in such a manner as to 
preclude safe boarding without causing further damage/injury to the 
turtle, line clippers described in paragraph (b)(2) of this section 
must be used to clip the line and remove as much line as possible prior 
to releasing the turtle.
    (iii) 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.
    (iv) 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.
    (5) If the sea turtle brought aboard appears dead or comatose, the 
sea turtle must be placed on its belly (on the bottom shell or 
plastron) so that the turtle is right side up and its hindquarters 
elevated at least 6 inches (15.24 cm) for a period of no less than 4 
hours and no more than 24 hours. The amount of the elevation depends on 
the size of the turtle; greater elevations are needed for larger 
turtles. A reflex test, performed by gently touching the eye and 
pinching the tail of a sea turtle, must be administered by a vessel 
operator, at least every 3 hours, to determine if the sea turtle is 
responsive. Sea turtles being resuscitated must be shaded and kept damp 
or moist but under no circumstance may be placed into a container 
holding water. A water-soaked towel placed over the eyes, carapace, and 
flippers is the most effective method to keep a turtle moist. Those 
that revive and become active must be returned to the sea in the manner 
described in paragraph (b)(6) of this section. Sea turtles that fail to 
revive within the 24-hour period must also be returned to the sea in 
the manner described in paragraph (b)(6)(i) of this section.
    (6) Live turtles must be returned to the sea after handling
    in accordance with the requirements of paragraphs (b)(4) and (b)(5) 
of this section:
    (i) By putting the vessel engine in neutral gear so that the
    propeller is disengaged and the vessel is stopped, and releasing 
the turtle away from deployed gear; and
    (ii) Observing that the turtle is safely away from the vessel 
before engaging the propeller and continuing operations.
    (7) 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.
    (c) Longline seabird mitigation measures. (1) Seabird mitigation 
techniques. Owners and operators of vessels registered for use of 
longline gear must ensure that the following actions are taken when 
fishing north of 23[deg] N. lat.:
    (i) Employ a line setting machine or line shooter to set the main 
longline when making deep sets west of 150[deg] W. long. using 
monofilament main longline;
    (ii) Attach a weight of at least 45 g to each branch line within 1 
m of the hook when making deep sets using monofilament main longline;
    (iii) When using basket-style longline gear, ensure that the main 
longline is deployed slack to maximize its sink rate;
    (2) Use completely thawed bait that has been dyed blue to an 
intensity level specified by a color quality control card issued by 
NMFS;
    (3) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb 
size) containing blue dye on board the vessel;
    (4) Discharge fish, fish parts (offal), or spent bait while setting 
or hauling longline gear, on the opposite side of the vessel from where 
the longline gear is being set or hauled;
    (5) Retain sufficient quantities of fish, fish parts, or spent 
bait, between the setting of longline gear for the purpose of 
strategically discharging it in accordance with paragraph (a)(6) of 
this section;

[[Page 68852]]

    (6) Remove all hooks from fish, fish parts, or spent bait prior to 
its discharge in accordance with paragraph (c)(4) of this section; and
    (7) Remove the bill and liver of any swordfish that is caught, 
sever its head from the trunk and cut it in half vertically, and 
periodically discharge the butchered heads and livers in accordance 
with paragraph (a)(6) of this section.
    (8) If a short-tailed albatross is hooked or entangled by a vessel 
registered for use of longline gear, owners and operators must ensure 
that the following actions are taken:
    (i) Stop the vessel to reduce the tension on the line and bring the 
bird on board the vessel using a dip net;
    (ii) Cover the bird with a towel to protect its feathers from oils 
or damage while being handled;
    (iii) Remove any entangled lines from the bird;
    (iv) Determine if the bird is alive or dead.
    (A) If dead, freeze the bird immediately with an identification tag 
attached directly to the specimen listing the species, location and 
date of mortality, and band number if the bird has a leg band. Attach a 
duplicate identification tag to the bag or container holding the bird. 
Any leg bands present must remain on the bird. Contact NMFS, the Coast 
Guard, or the U.S. Fish and Wildlife Service at the numbers listed on 
the Short-tailed Albatross Handling Placard distributed at the NMFS 
protected species workshop, inform them that you have a dead short-
tailed albatross on board, and submit the bird to NMFS within 72 hours 
following completion of the fishing trip.
    (B) If alive, handle the bird in accordance with paragraphs 
(c)(8)(iv)(C) through (J) of this section.
    (C) Place the bird in a safe enclosed place;
    (D) Immediately contact NMFS, the Coast Guard, or the U.S. Fish and 
Wildlife Service at the numbers listed on the Short-tailed Albatross 
Handling Placard distributed at the NMFS protected species workshop and 
request veterinary guidance;
    (E) Follow the veterinary guidance regarding the handling and 
release of the bird.
    (F) Complete the short-tailed albatross recovery data form issued 
by NMFS.
    (G) If the bird is externally hooked and no veterinary guidance is 
received within 24-48 hours, handle the bird in accordance with 
paragraphs (c)(17)(iv) and (v) of this section, and release the bird 
only if it meets the following criteria:
    (1) Able to hold its head erect and respond to noise and motion 
stimuli;
    (2) Able to breathe without noise;
    (3) Capable of flapping and retracting both wings to normal folded 
position on its back;
    (4) Able to stand on both feet with toes pointed forward; and
    (5) Feathers are dry.
    (H) If released under paragraph (G) of this section or under the 
guidance of a veterinarian, all released birds must be placed on the 
sea surface.
    (I) If the hook has been ingested or is inaccessible, keep the bird 
in a safe, enclosed place and submit it to NMFS immediately upon the 
vessel's return to port. Do not give the bird food or water.
    (J) Complete the short-tailed albatross recovery data form issued 
by NMFS.
    (9) If a seabird other than a short-tailed albatross is hooked or 
entangled by a vessel registered for use of longline gear, owners and 
operators must ensure that the following actions are taken:
    (i) Stop the vessel to reduce the tension on the line and bring the 
seabird on board the vessel using a dip net;
    (ii) Cover the seabird with a towel to protect its feathers from 
oils or damage while being handled;
    (iii) Remove any entangled lines from the seabird;
    (iv) Remove any external hooks by cutting the line as close as 
possible to the hook, pushing the hook barb out point first, cutting 
off the hook barb using bolt cutters, and then removing the hook shank;
    (v) Cut the fishing line as close as possible to ingested or
    inaccessible hooks;
    (vi) Leave the bird in a safe enclosed space to recover until its 
feathers are dry; and
    (vii) After recovered, release seabirds by placing them on the sea 
surface.
    (d) Vessel monitoring system. (1) Only a VMS unit owned by NMFS and 
installed by NMFS
    complies with the requirement of this subpart.
    (2) After the holder of a permit to use longline gear has been 
notified by the SAC of a specific date for installation of a VMS unit 
on the permit holder's vessel, the vessel must carry the VMS unit after 
the date scheduled for installation.
    (3) During the experimental VMS program, a longline permit holder 
shall not be assessed any fee or other charges to obtain and use a VMS 
unit, including the communication charges related directly to 
requirements under this section. Communication charges related to any 
additional equipment attached to the VMS unit by the owner or operator 
shall be the responsibility of the owner or operator and not NMFS.
    (4) The holder of a longline permit and the master of the vessel 
operating under the permit must:
    (i) Provide opportunity for the SAC to install and make operational 
a VMS unit after notification.
    (ii) Carry the VMS unit on board whenever the vessel is at sea.
    (iii) Not remove or relocate the VMS unit without prior approval 
from the SAC.
    (5) The SAC has authority over the installation and operation of 
the VMS unit. The SAC may authorize the connection or order the 
disconnection of additional equipment, including a computer, to any VMS 
unit when deemed appropriate by the SAC.
    (e) Protected species workshop. (1) Each year both the owner and 
the operator of a vessel registered for use of longline gear must 
attend and be certified for completion of a workshop conducted by NMFS 
on mitigation, handling, and release techniques for turtles and 
seabirds and other protected species.
    (2) A protected species workshop certificate will be issued by NMFS 
annually to any person who has completed the workshop.
    (3) An owner of a vessel registered for use of longline gear must 
have on file a valid protected species workshop certificate or copy 
issued by NMFS in order to maintain or renew their vessel registration.
    (4) An operator of a vessel registered for use of longline gear 
must have on board the vessel a valid protected species workshop 
certificate issued by NMFS or a legible copy thereof.


Sec.  660.713  Drift gillnet fishery.

    (a) Take reduction plan gear restrictions. Gear restrictions 
implementing the Pacific Offshore Cetacean Take Reduction Plan under 
the authority of the Marine Mammal Protection Act of 1972 remain in 
effect and can be found at 50 CFR 229.31.
    (b) Other gear restrictions. (1) The maximum length of a drift 
gillnet on board a vessel shall not exceed 6,000 ft (1,828.8 m).
    (2) Up to 1,500 ft (457.2 m) of drift gillnet in separate panels of 
600 ft (182.9 m) may be on board the vessel in a storage area.
    (c) Protected Resource Area Closures. (1) No person may fish with, 
set, or haul back drift gillnet gear in U.S. waters of the Pacific 
Ocean from August 15 through November 15 in the area bounded by 
straight lines connecting the following coordinates in the order listed 
(see figure 3 of this section):
    (i) Pt. Sur at 36[deg] 18.5' N. lat.;
    (ii) 34[deg] 27' N. lat. 123[deg] 35' W. long.;

[[Page 68853]]

    (iii) 34[deg] 27' N. lat. 129[deg] W. long.;
    (iv) 45[deg] N. lat. 129[deg] W. long.; and
    (v) the point where 45[deg] N. lat. intersects the Oregon coast.
    (2) No person may fish with, set, or haul back drift gillnet gear 
in U.S. waters of the Pacific Ocean south of 34o 27' N. lat. (Pt. 
Conception) and east of 120[deg] W. long. from January 1 through 
January 31 and from August 15 through August 31 during a forecasted or 
occurring El Nino event.
    (i) The Assistant Administrator will publish a notification in the 
Federal Register that an El Nino event is occurring off, or is forecast 
for off, the coast of southern California and the requirement for time 
area closures in the Pacific loggerhead conservation zone. The 
notification will also be announced in summary form by other methods as 
the Assistant Administrator determines necessary and appropriate to 
provide notice to the California/Oregon drift gillnet fishery.
    (ii) The Assistant Administrator will rely on information developed 
by NOAA offices that monitor El Nino events, such as NOAA's Coast Watch 
program, and developed by the State of California, to determine if such 
a notice should be published. The requirement for the area closures 
from January 1 through January 31 and from August 15 through August 31 
will remain effective until the Assistant Administrator issues a notice 
that the El Nino event is no longer occurring.
    (d) Mainland area closures. The following areas off the Pacific 
coast are closed to driftnet gear:
    (1) Within the U.S. EEZ from the United States-Mexico International 
Boundary to the California-Oregon border from February 1 through April 
30.
    (2) In the portion of the U.S. EEZ within 75 nautical miles from 
the mainland shore from the United States-Mexico International Boundary 
to the California-Oregon border from May 1 through August 14.
    (3) In the portion of the U.S. EEZ within 25 miles of the coastline 
from December 15 through January 31 of the following year from the 
United States-Mexico International Boundary to the California-Oregon 
border.
    (4) In the portion of the U.S. EEZ from August 15 through September 
30 within the area bounded by line extending from Dana Point to Church 
Rock on Santa Catalina Island, to Point La Jolla.
    (5) In the portion of the U.S. EEZ within 12 nautical miles from 
the mainland shore north of a line extending west of Point Arguello to 
the California-Oregon border.
    (6) In the portion of the U.S. EEZ within the area bounded by a 
line from the lighthouse at Point Reyes, California to Noonday Rock, to 
Southeast Farallon Island to Pillar Point.
    (7) In the portion of the U.S. EEZ off the Oregon coast east of a 
line approximating 1000 fathoms as defined by the following 
coordinates:
    42[deg] 00' 00'' N. lat. 125[deg] 10' 30'' W. long.
    42[deg] 25' 39'' N. lat. 124[deg] 59' 09'' W. long.
    42[deg] 30' 42'' N. lat. 125[deg] 00' 46'' W. long.
    42[deg] 30' 23'' N. lat. 125[deg] 04' 14'' W. long.
    43[deg] 02' 56'' N. lat. 125[deg] 06' 57'' W. long.
    43[deg] 01' 29'' N. lat. 125[deg] 10' 55'' W. long.
    43[deg] 50' 11'' N. lat. 125[deg] 19' 14'' W. long.
    44[deg] 03''23'' N. lat. 125[deg] 12' 22'' W. long.
    45[deg] 00' 06'' N. lat. 125[deg] 16' 42'' W. long.
    45[deg] 25' 27'' N. lat. 125[deg] 16' 29'' W. long.
    45[deg] 45' 37'' N. lat. 125[deg] 15' 19'' W. long.
    46[deg] 04' 45'' N. lat. 125[deg] 24' 41'' W. long.
    46[deg] 16' 00'' N. lat. 125[deg] 20' 32'' W. long.
    (8) In the portion of the U.S. EEZ north of 46[deg] 16' N. latitude 
(Washington coast).
    (e) Channel Islands area closures. The following areas off the 
Channel Islands are closed to driftnet gear:
    (1) San Miguel Island closures. (i) Within the portion of the U.S. 
EEZ north of San Miguel Island between a line extending 6 nautical 
miles west of Point Bennett and a line extending 6 nautical miles east 
of Cardwell Point.
    (ii) Within the portion of the U.S. EEZ south of San Miguel Island 
between a line extending 10 nautical miles west of Point Bennett and a 
line extending 10 nautical miles east of Cardwell Point.
    (2) Santa Rosa Island closure. Within the portion of the U.S. EEZ 
north of San Miguel Island between a line extending 6 nautical miles 
west from Sandy Point and a line extending 6 nautical miles east of 
Skunk Point from May 1 through July 31.
    (3) San Nicolas Island closure. In the portion of the U.S. EEZ 
within a radius of 10 nautical miles of 33[deg] 16' 41'' N. lat., 
119[deg] 34' 39'' W. long. (west end) from May 1 through July 31.
    (4) San Clemente Island closure. In the portion of the U.S. EEZ 
within 6 nautical miles of the coastline on the easterly side of San 
Clemente Island within a line extending 6 nautical miles west from 
33[deg] 02' 16'' N. lat., 118[deg] 35' 27'' W. long. and a line 
extending 6 nautical miles east from the light at Pyramid Head.


Sec.  660.714  Purse seine. [Reserved]


Sec.  660.715  Harpoon. [Reserved]


Sec.  660.716  Surface hook-and-line. [Reserved]


Sec.  660.717  Framework for revising regulations.

    (a) General. NMFS will establish and adjust specifications and 
management measures in accordance with procedures and standards in the 
FMP.
    (b) Annual actions. Annual specifications are developed and 
implemented according to Sec.  660.709.
    (c) Routine management measures. Consistent with section 3.4 of the 
FMP, management measures designated as routine may be adjusted during 
the year after recommendation from the Council, approval by NMFS, and 
publication in the Federal Register.
    (d) Changes to the regulations. Regulations under this subpart may 
be promulgated, removed, or revised. Any such action will be made 
according to the framework measures in section 8.3.4 of the FMP and 
will be published in the Federal Register.


Sec.  660.718  Exempted fishing.

    (a) In the interest of developing an efficient and productive 
fishery for HMS, the Regional Administrator may issue exempted fishing 
permits for the harvest of HMS in a manner or at times or places that 
otherwise would be prohibited.
    (b) No exempted fishing for HMS may be conducted unless authorized 
by an EFP issued for the participating vessel in accordance with the 
criteria and procedures specified in Sec.  600.745 of this chapter.


Sec.  660.719  Scientific observers.

    (a) All fishing vessels operating in HMS fisheries, including 
catcher/processors, at-sea processors, and vessels that harvest in 
Washington, Oregon, or California and land catch in another area, may 
be required to accommodate NMFS certified observers on board to collect 
scientific data. Any observer program will be implemented in accordance 
with the procedures at Sec.  660.717.
    (b) All vessels with observers on board must comply with the safety 
regulations at 50 CFR 600.746.
    (c) NMFS shall advise the permit holder or the designated agent of 
any observer requirement at least 24 hours (not including weekends and 
Federal holidays) before any trip.

[[Page 68854]]

    (d) When NMFS notifies the permit holder or designated agent of the 
obligation to carry an observer in response to a notification under 
this subpart or as a condition of an EFP issued under 50 CFR 660.718, 
the vessel may not engage in the fishery without taking the observer.
    (e) A permit holder must accommodate a NMFS observer assigned under 
these regulations. The Regional Administrator's office, and not the 
observer, will address any concerns raised over accommodations.
    (f) The permit holder, vessel operator, and crew must cooperate 
with the observer in the performance of the observer's duties, 
including:
    (1) Allowing for the embarking and debarking of the observer.
    (2) Allowing the observer access to all areas of the vessel
    necessary to conduct observer duties.
    (3) Allowing the observer access to communications equipment and 
navigation equipment as necessary to perform observer duties.
    (4) Allowing the observer access to VMS units to verify operation, 
obtain data, and use the communication capabilities of the units for 
official purposes.
    (5) Providing accurate vessel locations by latitude and longitude 
or loran coordinates, upon request by the observer.
    (6) Providing sea turtle, marine mammal, or sea bird specimens as 
requested.
    (7) Notifying the observer in a timely fashion when commercial 
fishing operations are to begin and end.
    (g) The permit holder, operator, and crew must comply with other 
terms and conditions to ensure the effective deployment and use of 
observers that the Regional Administrator imposes by written notice.
    (h) The permit holder must ensure that assigned observers are 
provided living quarters comparable to crew members and are provided 
the same meals, snacks, and amenities as are normally provided to other 
vessel personnel.
[FR Doc. 03-30486 Filed 12-9-03; 8:45 am]
BILLING CODE 3510-22-S