[Federal Register Volume 69, Number 18 (Wednesday, January 28, 2004)]
[Proposed Rules]
[Pages 4098-4105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1811]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 040113013-4013-01; I.D. 122403A]
RIN 0648-AR84


Fisheries Off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; Pelagic Longline Fishing 
Restrictions, Seasonal Area Closure, Limit on Swordfish Fishing Effort, 
Gear Restrictions, and Other Sea Turtle Take Mitigation Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: Pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act, NMFS issues this proposed rule that would establish a 
number of conservation and management measures for the pelagic 
fisheries of the western Pacific managed under the Fishery Management 
Plan for the Pelagic Fisheries of the Western Pacific Region (FMP). 
This proposed rule is intended to achieve certain objectives of the 
FMP, particularly achieving optimum yield for FMP-managed species, 
promoting domestic harvest and domestic values associated with FMP-
managed species, and promoting domestic marketing of FMP-managed 
species in America Samoa, the Commonwealth of the Mariana Islands, 
Guam, and Hawaii, while avoiding the likelihood of jeopardizing the 
continued existence of any species listed as endangered or threatened 
under the Endangered Species Act (ESA). Species of particular concern 
include the green, hawksbill, leatherback, loggerhead, and olive ridley 
sea turtles, all of which have been found to interact with, and be 
affected by, the pelagic fisheries of the western Pacific region.
    This proposed rule would eliminate the prohibition on longline 
fishing by vessels registered under the FMP for use under Hawaii 
longline limited access permits (``Hawaii-based longline vessels'') and 
vessels registered for use under longline general permits (``general 
longline vessels'') during April and May in certain waters south of the 
Hawaiian Islands; eliminate the prohibition on Hawaii-based longline 
vessels and general longline vessels using longline gear to target 
swordfish (``shallow-setting'') north of the equator; establish an 
annual limit on the number of shallow-sets that may be conducted north 
of the equator by the Hawaii-based longline fleet; divide and 
distribute this effort limit each calendar year in equal portions to 
interested holders of Hawaii longline limited access permits; require 
the use of circle hooks sized 18/0 or larger with a 10-degree offset 
and mackerel-type bait by Hawaii-based longline vessels shallow-setting 
north of the equator; establish annual limits on the numbers of fishery 
interactions with leatherback and loggerhead sea turtles; require that 
the longline-setting procedure be performed during the nighttime when 
shallow-setting north of 23 N. lat.; require that 
operators of Hawaii-based longline vessels carry and use NMFS-approved 
de-hooking devices; eliminate the requirement that operators of general 
longline vessels annually complete a protected species workshop; 
eliminate the requirement that general longline vessels and other 
pelagic fishing vessels using hook-and-line gear employ specified sea 
turtle handling measures; and eliminate the requirement that certain 
vessels may be re-registered to Hawaii longline limited access permits 
only during the month of October.

DATES: Comments must be received in writing by February 27, 2004.

ADDRESSES: Written comments on this proposed rule or its Initial 
Regulatory Flexibility Analysis (IRFA) should be mailed to Dr. Samuel 
Pooley, Acting Regional Administrator, NMFS, Pacific Islands Regional 
Office (PIRO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-
4700; or faxed to 808-973-2941. Written comments will not be accepted 
if submitted via e-mail or the Internet. Written comments regarding the 
burden hour estimates or any other aspects of the collection of 
information requirements contained in this proposed rule may be 
submitted by mail to NMFS (see ADDRESSES) and to OMB by e-mail at 
[email protected] or faxed to 202-395-7285. Copies of the 
Draft Supplemental Environmental Impact Statement (DSEIS), Regulatory 
Impact Review (RIR), and IRFA prepared for this action, as well as the 
Final Environmental Impact Statement (FEIS) that was prepared for the 
fisheries managed under the FMP and issued by NMFS on March 30, 2001, 
may be obtained from Dr. Samuel Pooley at the address above. Requests 
for such copies should indicate whether a paper copy or electronic copy 
on CD is preferred. Copies of the FEIS, DSEIS, IRFA, and RIR are also 
available on the Internet at the website of PIRO, http://swr.nmfs.noaa.gov/pir/. The DSEIS, IRFA, and RIR are also available at 
the website of the Western Pacific Fishery Management Council, http://www.wpcouncil.org/.

FOR FURTHER INFORMATION CONTACT: Tom Graham, Fishery Management 
Specialist, PIRO, at 808-973-2937.

SUPPLEMENTARY INFORMATION:

Background

    On March 29, 2001, NMFS issued a biological opinion under the ESA 
for the pelagic fisheries of the western Pacific region. The biological 
opinion included a reasonable and prudent alternative designed to avoid 
the likelihood of jeopardizing the continued existence of green, 
leatherback, and loggerhead sea turtles. The requirements of the 
reasonable and prudent alternative were implemented on an interim basis 
through an Order issued on March 30, 2001, by the United States 
District Court for the District of Hawaii in Center for Marine 
Conservation v. NMFS and a subsequent emergency interim rule made 
effective June 12, 2001 (66 FR 31561), and extended on December 10, 
2001 (66 FR 63630). The requirements were implemented on a permanent 
basis through a final rule published June 12, 2002 (67 FR 40232).
    The June 12, 2002, rule prohibits: (1) swordfish-directed fishing 
by Hawaii-based longline vessels and general longline vessels north of 
the equator, (2) fishing by Hawaii-based longline vessels and general 
longline vessels in certain

[[Page 4099]]

waters south of the Hawaiian Islands (between the equator and 
15 N. lat., and between 145 W. long. and 
180 long.), and (3) the landing or possessing of more 
than 10 swordfish per fishing trip by Hawaii-based longline vessels and 
general longline vessels fishing north of the equator. The rule allows 
the re-registration of vessels to Hawaii longline limited access 
permits only during the month of October; requires all longline vessel 
operators to annually attend a protected species workshop; and requires 
Hawaii-based longline vessels, general longline vessels, and non-
longline pelagic vessels using hook-and-line gear to use specified sea 
turtle handling and resuscitation measures.
    On December 12, 2001, NMFS reinitiated ESA section 7 consultation 
on the FMP, based on the reasonable and prudent alternative in the 
March 29, 2001, biological opinion and new information that could 
improve NMFS' ability to quantify and evaluate the effects of the FMP-
managed fisheries on listed sea turtle populations. At the conclusion 
of the consultation, on November 15, 2002, NMFS issued a new biological 
opinion specifying that continued authorization of pelagic fisheries in 
the western Pacific region under the FMP is not likely to jeopardize 
the continued existence of any endangered or threatened species under 
the jurisdiction of NMFS or result in the destruction or adverse 
modification of critical habitat.
    On August 31, 2003, the Memorandum Opinion issued in Hawaii 
Longline Association v. NMFS (D.D.C., Civ. No. 01-0765) invalidated the 
November 15, 2002, biological opinion and the June 12, 2002, final rule 
(67 FR 40232). On October 6, 2003, the Court stayed the August 31, 
2003, Order and reinstated the biological opinion and regulations until 
April 1, 2004.
    In June 2003, at its 118th meeting, the Western Pacific Fishery 
Management Council (Council) began considering recommendations for new 
measures for the FMP-managed fisheries, focusing on potential 
modifications to existing measures aimed at minimizing sea turtle 
interactions in the FMP-managed longline fisheries.
    On October 17, 2003, NMFS published a notice of intent (68 FR 
59771) to prepare a supplemental environmental impact statement (SEIS) 
in accordance with the National Environmental Policy Act of 1969 
(NEPA). The SEIS would re-examine the management measures currently in 
place to minimize interactions between the Hawaii-based longline 
fishery and protected species, as well as other management issues and 
options raised during the public scoping process. The notice also 
advised that the Court orders would eliminate existing measures 
designed to avoid the likelihood that FMP-managed fisheries would 
jeopardize the continued existence of listed species of sea turtles, 
and that NMFS and the Council were, therefore, considering management 
measures to protect sea turtles.
    On December 3, 2003, NMFS published a supplemental notice of intent 
(68 FR 67640) regarding the SEIS. This notice furnished additional 
information on the need for expedited management action on proposed 
management measures related to the Hawaii-based longline fishery and 
its potential impact on ESA-listed sea turtles. The accelerated 
management action schedule is necessary to avoid a lapse in sea turtle 
conservation measures after the June 12, 2002, final rule is vacated on 
April 1, 2004.
    The supplemental notice (68 FR 67640) also announced the Council's 
and NMFS' intent to apply alternative procedures approved by the 
Council on Environmental Quality (CEQ) to facilitate completion of the 
SEIS on the proposed management measures for the Hawaii-based longline 
fishery so that necessary turtle conservation rules could be effective 
by April 1, 2004. The supplemental notice advised that a subsequent 
phase of the SEIS would be prepared to address other management issues 
identified in the initial notice of intent (68 FR 59771) and during the 
subsequent public scoping process. The supplemental notice confirmed 
the initial scoping meeting schedule and effectiveness of the public 
input opportunity through December 15, 2003. The Council and NMFS also 
solicited, recorded, and considered input on issues and possible action 
options and alternatives received during public Council meetings and 
public meetings of the Council's Sea Turtle Conservation Special 
Advisory Committee, which was formed in September 2003.
    This proposed rule was developed in response to the urgent need to 
provide adequate protections for sea turtles and to the promising 
results of recent research in the Atlantic Ocean on mitigation 
technologies for sea turtle interactions. The research has identified 
combinations of hook and bait types with potential to substantially 
reduce interaction rates in swordfish-directed longline fishing and the 
adverse impacts of such interactions. Although these combinations have 
not been tested in Pacific Ocean fisheries, the affected sea turtle 
species are the same in the Pacific and Atlantic so the positive 
experimental results obtained in the Atlantic are expected to be 
largely replicated if the hook and bait combinations are applied in 
commercial fisheries in the western Pacific region. The relatively low 
sea turtle interaction rates expected from these hook and bait types, 
combined with other mitigation and safeguard measures, would allow the 
current restrictions on shallow-setting and deep-setting (tuna-
targeting) to be eased, enhancing the ability to achieve the objectives 
of the FMP, particularly the objectives to achieve optimum yield for 
FMP-managed species, promote domestic harvest and domestic values 
associated with FMP-managed species, and promote domestic marketing of 
FMP-managed species in America Samoa, the Commonwealth of the Mariana 
Islands, Guam, and Hawaii.
    This proposed rule would allow shallow-setting to occur at about 
one half the average annual level of effort during the 1994-1998 
period, facilitating the generation of economic benefits in that 
component of the fishery. This proposed rule would also give the 
longline fleet year-round access to yellowfin and bigeye tuna stocks in 
the area currently closed to longline fishing during April and May.
    At its 121st meeting, on November 25, 2003, the Council made a 
recommendation for management action. This proposed rule would 
implement both the Council's recommended action and the court ruling of 
August 31, 2003 (vacating the rule published June 12, 2002).

Management Measures to be Eliminated by Court Ruling

    The Court ruling will on April 1, 2004, eliminate: (1) The 
prohibition on Hawaii-based longline vessels and general longline 
vessels using longline gear to fish for swordfish north of the equator 
(as well as several restrictions intended to make this prohibition 
enforceable, including restrictions on gear configuration, set depth, 
and the number of swordfish possessed and landed); (2) the prohibition 
on longline fishing by Hawaii-based vessels and general longline 
vessels during April and May in certain waters south of the Hawaiian 
Islands (between the equator and 15 N. lat., and between 
145 W. long. and 180 long.); (3) the 
requirement that operators of general longline vessels annually 
complete a protected species workshop and have on board a valid 
protected species workshop certificate; (4) the requirement that owners 
and operators of general longline vessels and of other vessels using 
hooks to target Pacific pelagic species employ specified sea turtle 
handling measures (the handling

[[Page 4100]]

measures, which vary among vessel type, include carrying and using line 
clippers, dip nets, and wire or bolt cutters to disengage sea turtles, 
and handling, resuscitating, and releasing sea turtles in specified 
manners); and (5) the requirement that any vessel de-registered from a 
Hawaii longline limited access permit after March 29, 2001, may only be 
re-registered to a Hawaii longline limited access permit during the 
month of October.

Proposed Management Measures

    The Council's proposed action would: (1) Establish an annual limit 
on the amount of shallow-set longline fishing effort north of the 
equator that may be collectively exerted by Hawaii-based longline 
vessels (set at 2,120 shallow-sets per year); (2) divide and distribute 
this shallow-set effort limit each calendar year in equal portions (in 
the form of transferable single-set certificates valid for a single 
calendar year) to all holders of Hawaii longline limited access permits 
that respond positively to an annual solicitation of interest from 
NMFS; (3) prohibit any Hawaii-based longline vessel from making more 
shallow-sets north of the equator during a trip than the number of 
valid shallow-set certificates on board the vessel; (4) require that 
operators of Hawaii-based longline vessels submit to the Regional 
Administrator within 72 hours of each landing of pelagic management 
unit species one valid shallow-set certificate for every shallow-set 
made north of the equator during the trip; (5) require that Hawaii-
based longline vessels, when making shallow-sets north of the equator, 
use only circle hooks sized 18/0 or larger with a 10-degree offset; (6) 
require that Hawaii-based longline vessels, when making shallow-sets 
north of the equator, use only mackerel-type bait; (7) establish annual 
limits on the numbers of interactions between leatherback and 
loggerhead sea turtles and Hawaii-based longline vessels while engaged 
in shallow-setting (set equal to the annual estimated incidental take 
for the respective species in the shallow-set component of the Hawaii-
based fishery, as established in the prevailing biological opinion 
issued by NMFS pursuant to section 7 of the ESA); (8) establish a 
procedure for closing the shallow-setting component of the Hawaii-based 
longline fishery for the remainder of the calendar year when either of 
the two limits is reached, after giving 1 week advanced notice of such 
closure to all holders of Hawaii longline limited access permits (the 
numbers of interactions will be monitored with respect to the limits 
using year-to-date estimates derived from data recorded by NMFS vessel 
observers); (9) require that operators of Hawaii-based longline vessels 
notify the Regional Administrator (as defined at 50 CFR 660.236) in 
advance of every trip whether the longline sets made during the trip 
will involve shallow-setting or deep-setting and require that Hawaii-
based longline vessels make sets only of the type declared (i.e., 
shallow-sets or deep-sets); (10) require that operators of Hawaii-based 
longline vessels carry and use NMFS-approved de-hooking devices; and 
(11) require that Hawaii-based longline vessels, when making shallow-
sets north of 23 N. lat., start and complete the line-
setting procedure during the nighttime (specifically, no earlier than 
one hour after local sunset and no later than local sunrise).
    These proposed management measures would replace the existing 
restrictions on longlining north of the equator, which will be 
eliminated on April 1, 2004, by the Court ruling. Certain measures that 
will be eliminated by the Court ruling would not be reinstated under 
the proposed rule. Specifically, the proposed restrictions related to 
shallow-setting would apply only to Hawaii-based longline vessels, not 
general longline vessels; Hawaii-based longline vessels and general 
longline vessels would no longer be prohibited from longlining during 
April and May in certain waters south of the Hawaiian Islands; 
operators of general longline vessels would no longer be required to 
annually complete a protected species workshop; operators of general 
longline vessels and of other vessels using hooks to target Pacific 
pelagic species would no longer be required to employ specified sea 
turtle handling measures; and the period during which vessels de-
registered from a Hawaii longline limited access permit after March 29, 
2001, would be allowed to be re-registered to Hawaii longline limited 
access permits would no longer be limited to the month of October.
    These measures that would be eliminated were intended to minimize 
adverse impacts on certain species of sea turtles. The Council's 
proposed action would not reinstate them because the Council found they 
are not needed to achieve the objectives of the action, provided that 
the measures proposed in items (1) through (10) of the above list of 
proposed measures are implemented. The Council found that it is 
unlikely that general longline vessels would engage in shallow-setting 
north of the equator (which would be unrestricted under the proposed 
rule), primarily due to their being prohibited from longlining in the 
EEZ around Hawaii and from landing fish in Hawaii.
    The Council's findings with respect to achieving the objectives of 
the action were predicated on certain off-site sea turtle conservation 
projects being undertaken. These projects, which are not part of this 
proposed rule, would be aimed at protecting affected sea turtle 
populations on their nesting beaches and in their nearshore foraging 
grounds at sites outside of the United States. The sites include a 
nesting beach in Papua, coastal foraging grounds in western Papua, 
nesting beaches in Papua New Guinea, the fishing grounds of the halibut 
gillnet fishery in Baja California, Mexico, and nesting beaches in 
Japan. The projects would be undertaken by non-governmental 
organizations under contract with the Council and/or NMFS. In assessing 
the likely impacts of its proposed action, the Council considered these 
projects in conjunction with the regulatory elements of the proposed 
action.
    This proposed rule focuses on managing the Hawaii-based longline 
fishery with respect to listed sea turtle species. The Council intends 
to continue to consider management actions that might be needed for the 
other FMP-managed fisheries, including other longline fisheries and 
troll and handline fisheries.
    The proposed requirement to set longline gear only during the 
nighttime while shallow-setting north of 23 N. lat. is 
intended to minimize interactions with seabirds. It would put the FMP 
in compliance with the terms and conditions contained in a biological 
opinion issued on November 28, 2000, and amended on November 18, 2002, 
by the U.S. Fish and Wildlife Service, which are intended to conserve 
endangered short-tailed albatross.

Expected Effects of Proposed Rule on Sea Turtles

    The rates of sea turtle interactions and mortalities in the Hawaii-
based longline fishery resulting from the proposed rule would likely be 
substantially lower than those under the management regime in place in 
1999, prior to the imposition of restrictions on swordfish-directed 
fishing and the April-May area closure (the regime to which the fishery 
will revert on April 1, 2004, if management action is not taken before 
then), and higher than the expected rates under the current management 
regime. During the 1994-1998 period, which represents an appropriate 
baseline for the no-action scenario, the estimated annual average 
numbers of interactions were as follows: leatherback, 112; loggerhead, 
418; green, 40; and olive ridley, 146. Under the

[[Page 4101]]

proposed rule, the expected numbers of annual average interactions are 
as follows: leatherback, 35; loggerhead, 21; green, 7; and olive 
ridley, 42. Under the current management regime, the expected numbers 
of annual average interactions are as follows: leatherback, 6; 
loggerhead, 19; green, 3; and olive ridley, 31. The projected sea 
turtle mortality rates, which are subsets of the interaction rates, are 
more uncertain than the projected interaction rates because of the 
difficulty in estimating the numbers of turtles that ultimately die as 
a result of injuries incurred in interactions with fishing gear.
    The projected interaction and mortality rates under the proposed 
rule are uncertain in part because they are based on research findings 
regarding the efficacy of a hook-and-bait combination that has not been 
thoroughly tested in commercial fisheries in the Pacific Ocean.
    The proposed hook-and-bait combination (18/0-sized circle hooks 
with 10-degree offset in combination with mackerel-type bait) is one of 
a number of gear configurations tested in experiments conducted by NMFS 
in the Western Atlantic Ocean during the last 3 years. The results 
available to date indicate substantially reduced sea turtle interaction 
rates compared with the J-hooks and squid bait that are conventionally 
used to target swordfish and that served as the experimental controls. 
In the experiments, the use of the proposed hook-and-bait combination 
resulted in an average reduction of 92 percent in interactions with 
loggerhead sea turtles, an average reduction of 67 percent in 
interactions with leatherback sea turtles, an average increase of 30 
percent in swordfish catch, by weight, and an average reduction of 81 
percent in bigeye tuna catch, by weight.
    Under the proposed rule there is a possibility that greater 
effective fishing effort per set could increase relative to the no-
action scenario (as could the rate of sea turtle interactions per set), 
since fishermen would have an incentive to fish their limited available 
sets to maximize harvest levels. This effect, however, as well as the 
uncertainty of the efficacy of the hook and bait requirements, is 
unlikely to pose substantial risk to affected sea turtles populations 
because of the imposition of the annual limits on interactions with 
leatherbacks and loggerheads in the shallow-set component of the 
Hawaii-based longline fishery. Further, the requirement that vessel 
operators use NMFS-approved de-hooking devices is expected to reduce 
the number of mortalities per interaction.
    In addition to direct effects on sea turtles stemming from 
interactions with longline gear, the proposed rule might also have 
indirect effects. These include effects stemming from shifts in the 
production of swordfish and tuna between the U.S.-regulated fisheries 
and those of other countries and the effects of the Hawaii-based 
longline fishery serving as a model for sea turtle mitigation 
techniques that the fleets of other countries can adopt. Effects in 
both these categories are likely to be positive with respect to 
populations of affected sea turtles.
    This proposed rule has been recommended by the Council. The impacts 
of this proposed rule with respect to the likelihood of jeopardizing 
the continued existence of affected species of sea turtles will be 
assessed by NMFS in the process of the ESA section 7 consultation for 
the FMP-managed fisheries, which is currently underway. The rule might 
be revised, as necessary, to comport with the reasonable and prudent 
alternative, if any, of the biological opinion that is issued as a 
result of that consultation. If such restrictions exceed the scope of 
this proposed rule, NMFS will initiate a second round of notice and 
comment.
    NMFS seeks comment on the de-hooking devices that should be 
required to be carried and used on Hawaii-based longline vessels, 
including specific minimum design standards, specific required methods 
of use, and the possibility of requiring that several types of de-
hooking devices and related equipment be carried and used, depending on 
the circumstances. NMFS also seeks comment on more specific definitions 
or minimum design standards for circle hooks and mackerel-type bait 
that should be required when shallow-setting north of the equator.

Classification

    The Council and NMFS prepared a draft supplemental environmental 
impact statement (DSEIS) for this regulatory amendment. While a notice 
of availability has not yet been published, the DSEIS is scheduled to 
be filed with the Environmental Protection Agency and distributed in 
mid-January 2004 for an abbreviated (30-day) comment period as approved 
by CEQ.
    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
    The Council prepared an IRFA that describes the economic impact 
this proposed rule, if adopted, would have on small entities. A 
description of why action is being considered, the objectives and legal 
basis for the action, and a description of the action, including its 
reporting, recordkeeping, and other compliance requirements, are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. A summary of the analysis follows:

Number of Affected Small Entities

    The proposed rule would apply to all holders of Hawaii longline 
limited access permits and all holders of longline general permits. The 
number of Hawaii longline limited access permit holders is 164. Not all 
such permits are renewed and used every year (approximately 126 were 
renewed in 2003). Most holders of Hawaii longline limited access 
permits are based in, or operate out of, Hawaii. Longline general 
permits are not limited by number. Approximately 67 longline general 
permits were issued in 2003. In 2003 all but two holders of longline 
general permits were based in, or operated out of, American Samoa. The 
remaining two were based in the Northern Mariana Islands.
    In a few cases multiple permits are held by a single business, so 
the number of businesses to whom the rule would apply is slightly 
smaller than the number of permit holders. All holders of Hawaii 
longline limited access permits and longline general permits are 
believed to be small entities (i.e., they are businesses that are 
independently owned and operated, not dominant in their field, and have 
no more than $3.5 million in annual receipts). Therefore, the number of 
small entities to which the rule would apply is approximately 230.

Duplicating, Overlapping, and Conflicting Federal Rules

    To the extent practicable, it has been determined that there are no 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.

Alternatives to the Proposed Rule

    A number of alternatives to the proposed rule were considered. 
Described below are the alternatives and why they were not chosen.
    The alternatives included two variations on the seasonal area 
longline closure, including one that would retain the current April-May 
closure in certain waters south of the Hawaiian Islands and one that 
would retain the current April-May closure with the exception of the 
EEZ waters around Palmyra Atoll (the proposed rule would eliminate the 
current April-May area closure). The alternatives were rejected because 
they would unnecessarily constrain the fishing activities and economic 
performance of holders of longline

[[Page 4102]]

general permits and Hawaii longline limited access permits; adverse 
impacts to sea turtles could be adequately mitigated through other 
elements of the preferred alternative without having to restrict 
longline fishing activity by period or area.
    The alternatives included five variations on the amount of shallow-
setting longline effort north of the equator that would be allowed by 
Hawaii-based vessels. The levels of shallow-setting effort considered 
were zero, 1,060 sets per year, 3,179 sets per year, and unlimited, as 
well as one alternative that would allow only a one-time trial of 1,560 
sets (the proposed rule would limit shallow-setting effort at 2,120 
sets, about 50 percent of the 1994-1998 annual average level). The 
selection among alternatives was based on their expected impacts on sea 
turtles (sea turtle interactions and mortalities are expected to be 
strongly correlated with the amount of fishing effort) versus their 
expected impacts on the economic performance of the Hawaii-based 
longline fishery (economic benefits are expected to be strongly 
correlated with the amount of fishing effort). The alternatives 
allowing shallow-setting at levels greater than 50 percent of the 1994-
1998 annual average were rejected because they might fail to keep 
impacts on sea turtles below those required in the biological opinion's 
incidental take statement. The alternatives allowing shallow-setting at 
levels less than 50 percent of the 1994-1998 annual average were 
rejected because they would unnecessarily constrain the fishing 
activities and economic performance of Hawaii-based longline vessels; 
adverse impacts to sea turtles could be adequately mitigated through 
other elements of the preferred alternative without having to restrict 
shallow-setting to the degree proposed under the rejected alternatives.
    The alternatives included several variations on how the allowable 
level of shallow-setting effort north of the equator would be allocated 
among holders of Hawaii longline limited access permits. Variations 
included allocating the available effort by lottery, allocating it 
equally among all permit holders, allocating it in proportion to the 
permit holders' historical shallow-setting effort, and not allocating 
the effort in any particular way, in which case the fishery would be 
closed each year once the fleet-wide limit is reached (the proposed 
rule would divide and distribute the limit equally among all interested 
permit holders in the form of transferable shallow-set certificates). 
The lottery variation was rejected because it would impose a 
substantial amount of uncertainty on fishermen and might be considered 
inequitable by some fishermen. The equal-distribution variation was 
rejected because it would give each permit holder too few shallow sets 
to be able to make it worth investing and participating in the shallow-
set component of the fishery, thereby constraining the economic 
performance of that component. The variation of allocating effort in 
proportion to the permit holders' historical shallow-setting effort was 
rejected because it would be excessively costly to implement and 
because of the contention likely to be generated with respect to the 
documentation and determination of individuals' historical fishing 
effort. The fleet-wide limit variation was rejected because it would 
create an incentive for each permit holder to do as much shallow-
setting as possible before the fishery is closed, thereby encouraging 
fishermen to shallow-set under what would otherwise be sub-optimal 
conditions (in terms of both economic performance and safety).
    The alternatives included two variations on the sea turtle 
interaction limit(s), including no limit and a limit for every species 
for which there is an Incidental Take Statement issued under the ESA 
(the proposed rule would close the shallow-set component of the fishery 
if either of two calendar-year interaction limits is reached, one for 
leatherback sea turtles and one for loggerhead sea turtles; the limits 
would be set equal to the annual estimated incidental take for the 
respective species in the shallow-set component of the Hawaii-based 
fishery, as established in the prevailing biological opinion issued by 
NMFS pursuant to section 7 of the ESA). The no-limit variation was 
rejected because it might fail to adequately minimize adverse impacts 
on sea turtles. The variation of establishing limits for all affected 
species was rejected because it would likely result in the shallow-set 
component of the fishery being closed more often than is needed to 
adequately mitigate adverse impacts on sea turtles.

Effects of the Proposed Rule on Small Entities

    The proposed rule is expected to have positive overall economic 
impacts on the small entities to whom the proposed rule would apply, 
all of which are individuals and businesses that hold permits for, and 
participate in, the western Pacific pelagic longline fisheries. These 
positive impacts would stem from the relaxation of the current 
restrictions on longlining, including the elimination of the April-May 
area closure for longlining and the elimination of the prohibition on 
shallow-setting north of the equator, thereby providing new fishing 
opportunities and potential economic benefits. These benefits would be 
very slightly offset by the need to acquire and use NMFS-approved de-
hooking devices.
    Holders of Hawaii longline limited access permits that choose not 
to engage in shallow-setting are likely to further benefit each year by 
being able to sell their share of shallow-set certificates to other 
permit holders.
    Holders of Hawaii longline limited access permits that choose to 
engage in shallow-setting are likely to benefit from the required hook-
and-bait combination, as it has been found in experiments in the 
Atlantic Ocean to result in higher catch rates of swordfish relative to 
conventionally used hook and bait types. These permit holders would 
also be subject to new costs, which would partly offset the new 
benefits available from shallow-setting. These include the costs of 
acquiring an adequate number of shallow-set certificates each year and 
acquiring and using circle hooks sized 18/0 or larger, with 10-degree 
offset. There would also be very minor new costs associated with the 
requirement to notify NMFS each year if they are interested in 
receiving shallow-set certificates and with the requirement to submit 
shallow-set certificates to NMFS after each trip. There may also be new 
costs (relative to the costs associated with conventional practices) 
associated with the need to use only mackerel-type bait and to conduct 
the line-setting procedure during the nighttime hours.
    Holders of longline general permits would have the opportunity to 
engage in unrestricted shallow-setting north of the equator, but 
because general longline vessels are not allowed to fish in the EEZ 
around Hawaii or land fish in Hawaii, it is unlikely to be a cost-
effective option and thus unlikely to yield new economic benefits to 
fishery participants.
    The proposed rule is likely to positively impact small businesses 
in addition to those to which the rule would apply. These include 
Hawaii-based businesses that supply goods and services to fishing 
operations, as fishing activities would expand, and seafood wholesalers 
and retailers, as the proposed rule is expected to lead to increased 
landings of swordfish and a more regular supply of tuna.
    A copy of the IRFA is available from NMFS (see ADDRESSES).
    This proposed rule contains two collection-of-information 
requirements subject to review and approval by the

[[Page 4103]]

Office of Management and Budget (OMB) pursuant to the Paperwork 
Reduction Act (PRA). These requirements have been submitted to the OMB 
for approval. The first would require that holders of Hawaii longline 
limited access permits respond to annual requests from NMFS if they are 
interested in receiving shares of the annual limit on longline shallow-
sets (in the form of shallow-set certificates). The second would 
require that holders of Hawaii longline limited access permits or their 
agents notify the Regional Administrator prior to each fishing trip 
whether longline shallow-sets or deep-sets will be made during the 
trip. The public reporting burden for the first collection-of-
information requirement is estimated to average ten minutes per 
response, and for the second requirement, four minutes per response, 
including time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection information.
    Public comment is sought regarding whether this proposed collection 
of information is 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 collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS (see ADDRESSES) and to OMB by e-
mail at [email protected] or faxed to 202-395-7285. 
Notwithstanding any other provision of the law, no person is required 
to respond to, and no person shall be subject to penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA, unless that collection of information displays a currently 
valid OMB control number.
    In a biological opinion dated November 15, 2002, NMFS determined 
that fishing activities conducted under the FMP and its implementing 
regulations are not likely to jeopardize the continued existence of any 
endangered or threatened species under the jurisdiction of NMFS or 
result in the destruction or adverse modification of critical habitat. 
Under rulings made by the U.S. District Court for the District of 
Columbia on August 31, 2003, and October 6, 2003 (Hawaii Longline 
Association v. NMFS), the biological opinion of November 15, 2002, will 
be vacated on April 1, 2004. In response to the impending vacatur of 
the biological opinion and to analyze the management measures in this 
proposed rule, a request to reinitiate formal consultation was made by 
the NMFS Pacific Islands Region, Office of Sustainable Fisheries, to 
the NMFS Office of Protected Resources on December 11, 2003.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, and 
Reporting and recordkeeping requirements.

    Dated: January 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

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

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

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

    2. In Sec. 660.12, the definition of ``Pelagics FMP'' is revised 
and new definitions for ``Deep-set or Deep-setting'', ``Shallow-set or 
Shallow-setting'', and ``Shallow-set certificate'', are added 
alphabetically to read as follows:


Sec. 660.12  Definitions.

* * * * *
    Deep-set or Deep-setting means the deployment of, or deploying, 
respectively, longline gear in a manner consistent with all the 
following criteria: with all float lines at least 20 meters in length; 
with a minimum of 15 branch lines between any two floats (except 
basket-style longline gear which may have as few as 10 branch lines 
between any two floats); without the use of light sticks; and resulting 
in the possession or landing of no more than 10 swordfish (Xiphias 
gladius) at any time during a given trip. As used in this definition 
``float line'' means a line used to suspend the main longline beneath a 
float and ``light stick'' means any type of light emitting device, 
including any flourescent ``glow bead'', chemical, or electrically 
powered light that is affixed underwater to the longline gear.
* * * * *
    Pelagics FMP means the Fishery Management Plan for the Pelagic 
Fisheries of the Western Pacific Region.
* * * * *
    Shallow-set or Shallow-setting means the deployment of, or 
deploying, respectively, longline gear in a manner that does not meet 
the definition of deep-set or deep-setting as defined in this section.
    Shallow-set certificate means an original paper certificate that is 
issued by NMFS and valid for one shallow-set of longline gear (more 
than one nautical mile of deployed longline gear is a complete set) for 
sets that start during the period of validity indicated on the 
certificate.
* * * * *


Sec. 660.21  [Removed]

    3. In Sec. 660.21, paragraphs (m) and (n) are removed.
    4. In Sec. 660.22, paragraph (hh) is added, paragraphs (ff), (gg), 
(jj), (kk), (ll), (mm), (nn), (oo), (pp), (qq), (rr), and (ss) are 
revised, and paragraph (tt) is removed and reserved, to read as 
follows:


Sec. 660.22  Prohibitions.

* * * * *
    (ff) Own or operate a vessel registered for use under a Hawaii 
longline limited access permit and fail to 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 
in violation of Sec. 660.34(a).
    (gg) Operate a vessel registered for use under a Hawaii longline 
limited access permit without having on board a valid protected species 
workshop certificate issued by NMFS or a legible copy thereof in 
violation of Sec. 660.34(d).
    (hh) From a vessel registered for use under a Hawaii longline 
limited access permit, make any longline set not of the type (shallow-
setting or deep-setting) indicated in the notification to the Regional 
Adminstrator pursuant to Sec. 660.23(a), in violation of Sec. 
660.33(h).
* * * * *
    (jj) Fail to carry and use a line clipper, dip net, dehooker, and 
wire or bolt cutters on a vessel registered for use under a Hawaii 
longline limited access permit in violation of Sec. 660.32(a).
    (kk) Engage in shallow-setting without a valid shallow-set 
certificate for each shallow-set made in violation of Sec. 660.33(c).
    (ll) Fail to attach a valid shallow-set certificate for each 
shallow-set to the original logbook form submitted to the Regional 
Administrator under Sec. 660.14, in violation of Sec. 660.33(c).

[[Page 4104]]

    (mm) Fail to comply with the sea turtle handling, resuscitation, 
and release requirements when operating a vessel registered for use 
under a Hawaii longline limited access permit in violation of Sec. 
660.32(b), (c), or (d).
    (nn) Engage in the line-setting process from a vessel registered 
for use under a Hawaii limited access longline permit while shallow-
setting north of 23 N. lat. during daylight hours in 
violation of Sec. 660.35(a)(10).
    (oo) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0 lat.) with hooks other than circle hooks sized 18/0 
or larger, with 10 offset, in violation of Sec. 
660.33(f).
    (pp) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0 lat.) with bait other than mackerel-type bait in 
violation of Sec. 660.33(g).
    (qq) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit after the shallow-set 
component of the longline fishery has been closed pursuant to Sec. 
660.33(b)(3)(ii), in violation of Sec. 660.33(i).
    (rr) Have on board a vessel registered for use under a Hawaii 
longline limited access permit, at any time during a trip for which 
notification to NMFS under Sec. 660.23(a) indicated that deep-setting 
would be done, float lines less than 20 meters in length or light 
sticks, in violation of Sec. 660.33(d).
    (ss) Transfer a shallow-set certificate to a person other than a 
holder of a Hawaii longline limited access permit in violation of Sec. 
660.33(e).
    (tt) [Reserved]
* * * * *
    5. In Sec. 660.23, paragraph (a) is revised to read as follows:


Sec. 660.23  Notifications.

    (a) The permit holder for a fishing vessel subject to the 
requirements of this subpart, or an agent designated by the permit 
holder, shall provide a notice to the Regional Administrator at least 
72 hours (not including weekends and Federal holidays) before the 
vessel leaves port on a fishing trip, any part of which occurs in the 
EEZ around Hawaii. The vessel operator will be presumed to be an agent 
designated by the permit holder unless the Regional Administrator is 
otherwise notified by the permit holder. The notice must be provided to 
the office or telephone number designated by the Regional 
Administrator. The notice must provide the official number of the 
vessel, the name of the vessel, trip type (either deep-setting or 
shallow-setting), the intended departure date, time, and location, the 
name of the operator of the vessel, and the name and telephone number 
of the agent designated by the permit holder to be available between 8 
a.m. and 5 p.m. (Hawaii time) on weekdays for NMFS to contact to 
arrange observer placement.
* * * * *
    6. In Sec. 660.32, paragraph (a)(1) is revised, paragraphs (a)(2) 
and (a)(3) are removed, paragraphs (a)(4) and (a)(5) are redesignated 
as paragraphs (a)(2) and (a)(3), respectively, and new paragraph (a)(4) 
is added, to read as follows:


Sec. 660.32  Sea turtle take mitigation measures.

    (a) * * *
    (1) Owners and operators of vessels registered for use under a 
Hawaii longline limited access permit must carry aboard their vessels 
line clippers meeting the minimum design standards as specified in 
paragraph (a)(2) of this section, dip nets meeting the minimum 
standards prescribed in paragraph (a)(3) of this section, dehookers 
meeting the minimum design standards prescribed in paragraph (a)(4) 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 hooks as possible in accordance with the 
requirements specified in paragraphs (b) through (d) of this section.
* * * * *
    (4) Dehookers. Dehookers are devices intended to remove embedded 
hooks from sea turtles and other animals in a manner that minimizes 
injury and trauma to the animals. The minimum design standards are that 
the device or devices can be used to grasp or engage a hook embedded in 
a sea turtle or other animal on board the vessel or in the water 
alongside the vessel and remove the hook with little injury or trauma 
to the animal.
* * * * *
    7. Section 660.33 is revised to read as follows:


Sec. 660.33  Western Pacific longline fishing restrictions.

    (a) Limit on shallow-setting by Hawaii longline vessels.
    (1) A maximum annual limit of 2,120 is established on the number of 
shallow-set certificates that will be made available each calendar year 
to vessels registered for use under Hawaii longline limited access 
permits.
    (2) The Regional Administrator will divide the 2,120-set limit each 
calendar year into equal shares such that each holder of a Hawaii 
longline limited access permit who provides notice of interest to the 
Regional Administrator no later than November 1 prior to the start of 
the calendar year, pursuant to paragraph (a)(3) of this section, 
receives a share. If such division would result in shares containing a 
fraction of a set, the limit will be adjusted downward such that each 
share consists of a whole number of sets.
    (3) Any permit holder who provides notice according to this 
paragraph is eligible to receive shallow-set certificates. In order to 
be eligible to receive shallow-set certificates for a given calendar 
year, holders of Hawaii longline limited access permits must provide 
written notice to the Regional Administrator of their interest in 
receiving such certificates no later than November 1 prior to the start 
of the calendar year, except for 2004, the notification deadline for 
which is May 1, 2004.
    (4) No later than June 1, 2004, and in every year subsequent, no 
later than December 1, the Regional Administrator will send shallow-set 
certificates valid for the upcoming calendar year to all holders of 
Hawaii longline limited access permits that provided notice of interest 
to the Regional Administrator pursuant to paragraph (a)(3) of this 
section.
    (b) Limits on sea turtle interactions. (1) Maximum annual limits 
are established on the numbers of physical interactions that occur each 
calendar year between vessels registered for use under Hawaii longline 
limited access permits while shallow-setting and:
    (i) Leatherback sea turtles (Dermochelys coriacea); and
    (ii) Loggerhead sea turtles (Caretta caretta).
    (2) The two sea turtle interaction limits are set equal to the 
Annual Estimated Incidental Takes for the respective species in the 
shallow-setting component of the Hawaii-based longline fishery, as 
indicated in the latest Incidental Take Statement issued by NMFS in 
association with a Biological Opinion pursuant to section 7 of the 
Endangered Species Act.
    (3) Upon determination by the Regional Administrator that, based on 
data from NMFS observers, either of the two interaction limits has been 
reached during a given calendar year:
    (i) As soon as practicable, the Regional Administrator will file 
for publication at the Office of the Federal Register a notification of 
the limit having been reached. The notification will include an 
advisement that the shallow-set component of the longline

[[Page 4105]]

fishery shall be closed and shallow-setting north of the equator by 
vessels registered for use under Hawaii longline limited access permits 
will be prohibited beginning at a specified date, not earlier than 7 
days after the date of filing of the notification of the closure for 
public inspection at the Office of the Federal Register, until the end 
of the calendar year in which the limit was reached. Coincidental with 
the filing of the notification of the limit having been reached at the 
Office of the Federal Register, the Regional Administrator will also 
provide notice that the shallow-set component of the longline fishery 
shall be closed and shallow-setting north of the equator by vessels 
registered for use under Hawaii longline limited access permits will be 
prohibited beginning at a specified date, not earlier than 7 days after 
the date of filing of a notification of the closure for public 
inspection at the Office of the Federal Register, to all holders of 
Hawaii longline limited access permits via electronic mail, facsimile 
transmission, or post.
    (ii) Beginning on the fishery closure date indicated in the 
notification published in the Federal Register under paragraph 
(b)(3)(i) of this section until the end of the calendar year in which 
the limit was reached, the shallow-set component of the longline 
fishery shall be closed.
    (c) Owners and operators of vessels registered for use under a 
Hawaii longline limited access permit may engage in shallow-setting 
north of the equator (0 lat.) providing that there is on 
board one valid shallow-set certificate for every shallow-set that is 
made during the trip. For each shallow-set made north of the equator 
(0 lat.) vessel operators must submit one valid shallow-
set certificate to the Regional Administrator. The certificate must be 
attached to the original logbook form that corresponds to the shallow-
set and that is submitted to the Regional Administrator within 72 hours 
of each landing of management unit species as required under Sec. 
660.14.
    (d) Vessels registered for use under a Hawaii longline limited 
access permit may not have on board at any time during a trip for which 
notification to NMFS under Sec. 660.23(a) indicated that deep-setting 
would be done any float lines less than 20 meters in length or light 
sticks. As used in this paragraph ``float line'' means a line used to 
suspend the main longline beneath a float and ``light stick'' means any 
type of light emitting device, including any flourescent ``glow bead'', 
chemical, or electrically powered light that is affixed underwater to 
the longline gear.
    (e) Shallow-set certificates may be transferred only to holders of 
Hawaii longline limited access permits.
    (f) Owners and operators of vessels registered for use under a 
Hawaii longline limited access permit must use only circle hooks sized 
18/0 or larger, with 10 offset, when shallow-setting 
north of the equator (0 lat.).
    (g) Owners and operators of vessels registered for use under a 
Hawaii longline limited access permit must use only mackerel-type bait 
when shallow-setting north of the equator (0 lat.).
    (h) Owners and operators of vessels registered for use under a 
Hawaii longline limited access permit may make sets only of the type 
(shallow-setting or deep-setting) indicated in the notification to NMFS 
pursuant to Sec. 660.23(a).
    (i) Vessels registered for use under Hawaii longline limited access 
permits may not be used to engage in shallow-setting north of the 
equator (0 lat.) any time during which the shallow-set 
component of the longline fishery is closed pursuant to paragraph 
(b)(3)(ii) of this section.
    8. Section 660.34 is revised to read as follows:


Sec. 660.34  Protected species workshop.

    (a) Each year both the owner and the operator of a vessel 
registered for use under a Hawaii longline limited access permit must 
attend and be certified for completion of a workshop conducted by NMFS 
on mitigation, handling, and release techniques for turtles and 
seabirds and other protected species.
    (b) A protected species workshop certificate will be issued by NMFS 
annually to any person who has completed the workshop.
    (c) An owner of a vessel registered for use under a Hawaii longline 
limited access permit must maintain and have on file a valid protected 
species workshop certificate issued by NMFS in order to maintain or 
renew their vessel registration.
    (d) An operator of a vessel registered for use under a Hawaii 
longline limited access permit and engaged in longline fishing must 
have on board the vessel a valid protected species workshop certificate 
issued by NMFS or a legible copy thereof.
    9. In Sec. 660.35, new paragraph (a)(10) is added to read as 
follows:


Sec. 660.35  Pelagic longline seabird mitigation measures.

    (a) * * *
    (10) When shallow-setting north of 23 N. lat., begin 
the line-setting process at least one hour after local sunset and 
complete the setting process no later than local sunrise, using only 
the minimum vessel lights necessary for safety.
* * * * *


Sec. 660.36  [Removed and reserved]

    10. Section 660.36 is removed and reserved.
[FR Doc. 04-1811 Filed 1-27-04; 8:45 am]
BILLING CODE 3510-22-S