[Federal Register Volume 69, Number 48 (Thursday, March 11, 2004)]
[Rules and Regulations]
[Pages 11540-11545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5553]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 031202301-4067-02; I.D.111403C]
RIN 0648-AR53


Taking of Threatened or Endangered Species Incidental to 
Commercial Fishing Operations

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing a final rule to prohibit shallow longline sets 
of the type normally targeting swordfish on the high seas in the 
Pacific Ocean east of 150[deg] W. long. by vessels managed under the 
Fishery Management Plan for U.S. West Coast Fisheries for Highly 
Migratory Species (FMP). This action is intended to protect endangered 
and threatened sea turtles from the adverse impacts of shallow longline 
fishing by U.S. longline fishing vessels in the Pacific Ocean and 
operating out of the west coast. This rule supplements the regulations 
that implement the FMP that prohibit shallow longline sets on the high 
seas in the Pacific Ocean west of 150[deg] W. long. by vessels managed 
under that FMP. The FMP was partially approved by NMFS on February 4, 
2004. Together, these two regulations are expected to conserve 
leatherback and loggerhead sea turtles as required under the Endangered 
Species Act (ESA).

DATES: This final rule is effective April 12, 2004.

ADDRESSES: Copies of the FMP, which includes an environmental impact 
statement (EIS) accompanied by a regulatory impact review (RIR) and an 
initial regulatory flexibility analysis (IRFA) are available on the 
internet at http://www.pcouncil.org/hms/hmsfmp.html or may be obtained 
from Daniel Waldeck, Pacific Fishery Management Council, 7700 NE 
Ambassador Place, Suite 200, Portland, Oregon, 97220-1384, 
[email protected], (503) 820-2280. This final rule corresponds to 
the High Seas Pelagic Longline Alternative 3 in the Council EIS, RIR, 
and IRFA. The final regulatory flexibility analysis (FRFA)is available 
on the internet at http://swr.ucsd.edu/ or may be obtained from Tim 
Price, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, 
California, 90802-4213, [email protected], (562) 980-4029.

FOR FURTHER INFORMATION CONTACT: Tim Price, NMFS, Southwest Region, 
Protected Resources Division, 562-980-4029.

SUPPLEMENTARY INFORMATION: Additional information about the status of 
sea turtles and the West Coast-based pelagic longline fishery can be 
found in the proposed rule published on December 17, 2003 (68 FR 
70219). All species of sea turtles that are known to interact with U.S. 
longline vessels in the Pacific Ocean are listed as either endangered 
or threatened under the ESA. The incidental take of endangered species 
may be authorized only by an incidental take statement issued under 
section 7 of the ESA or an incidental take permit issued under section 
10 of the ESA. The incidental take of threatened species may be 
authorized only by an incidental take statement in a biological opinion 
issued pursuant to section 7 of the ESA, an incidental take permit 
issued pursuant to section 10 of the ESA, or regulations under section 
4(d) of the ESA.
    A number of longline vessels targeting swordfish unload their catch 
and re-provision in California ports. Participants in the West Coast-
based pelagic longline fishery often fish more than 1,000 nautical 
miles (1,900 km) offshore and are generally prohibited by state 
regulations from fishing within 200 nautical miles (370 km) of the West 
Coast. From October 2001 through January 31, 2004, 409 sets were 
observed on 20 trips, documenting a total of 46 sea turtle 
interactions, consisting of 3 leatherback sea turtles, 42 loggerhead 
sea turtles, and 1 olive ridley sea turtle. All of the observed sea 
turtles were released alive except two recent loggerhead sea turtles 
which were dead.
    On October 31, 2003, the Pacific Fishery Management Council 
(Council) submitted the FMP to NMFS for review. The FMP includes 
management measures for the West Coast-based pelagic longline fishery 
that prohibits shallow longline sets of the type

[[Page 11541]]

normally used to target swordfish on the high seas in the Pacific Ocean 
west of 150[deg] W. long. by vessels managed under the FMP. In 
addition, to conserve sea turtles, the FMP requires West Coast-based 
pelagic longline vessels to have on board and to use dip nets, line 
cutters, and wire or bolt cutters capable of cutting through the 
vessel's hooks to release sea turtles with the least harm possible to 
the sea turtles. On February 4, 2004, NMFS partially approved the FMP. 
NMFS disapproved the provision of the FMP that would allow West Coast-
based pelagic longline vessels to make shallow sets east of the 
150[deg] W. Long.. The disapproval of that provision was based, in 
part, on the biological opinion, dated February 4, 2004, which 
concluded that allowing shallow set fishing east of 150[deg] W. Long. 
and north of the equator (0[deg]) was likely to jeopardize loggerhead 
sea turtles.

Response to Comments

    NMFS published a proposed rule on December 17, 2003 (68 FR 70219). 
NMFS received 127 comments on the proposed rule. There were 124 
comments in support of the proposed rule and 3 comments opposed. Most 
of the comments received in favor of the proposed rule were emails sent 
by fax containing identical or similar language. NMFS reviewed and 
considered all comments received in the development of this rule.
    Comment 1: Longline vessels departing from California and targeting 
swordfish on the high seas are not a problem for sea turtles because 
the fishery is very small, consisting of less than 25 vessels and the 
fishermen attach their hooks to leaders that are longer than the float 
lines which allow sea turtles to reach the surface when they are 
hooked. Moreover, there have been no observed sea turtle mortalities 
aboard longline vessels departing from California and targeting 
swordfish on the high seas.
    Response: Recent observer data indicate that there were two 
incidental mortalities of loggerhead sea turtles during a fishing trip 
which departed from California in which the gear consisted of longer 
leaders than float lines. These data indicate that mortalities do occur 
on sets in which the leaders are longer than the ball drop. Although 
there may only be a few active West Coast-based longline vessels, NMFS 
estimates that if one million hooks are set by the fleet, there may be 
23 to 57 leatherback, 126 to 195 loggerhead, and 1 to 11 olive ridley 
sea turtles captured incidentally.
    Comment 2: If longline vessels departing from California are 
prohibited from making shallow sets and targeting swordfish, the 
foreign, unregulated, fleet will shift fishing effort to the waters 
vacated by the U.S. fleet. The shift in effort to foreign fleets may 
result in more sea turtles interactions and mortality, causing more 
harm to sea turtle populations.
    Response: Although there is a possibility that fishing effort may 
shift to foreign nations, at this time, there are no data to support 
this claim. Moreover, there are no data that show that longline fishing 
by foreign vessels have higher sea turtle interaction rates.
    Comment 3: One commenter indicated that a prohibition on shallow 
sets was not necessary because West Coast-based longline vessel 
operators minimize their impact to sea turtles by bringing aboard any 
hooked sea turtles using a dip net and removing the hook before the 
animal is released alive back into the ocean. In addition, ARC 
dehookers for deep hooked turtles are being placed aboard all longline 
boats fishing out of California.
    Response: NMFS agrees that use of a dip net to bring a hooked sea 
turtle aboard a vessel and removing the hook increases the likelihood 
of its survival when the animal is released. Under the FMP, vessel 
operators would be required to comply with sea turtle handling, 
resuscitation, and release requirements, which include the use of dip 
nets and the removal of hooks. NMFS considered these factors as part of 
the proposed action in the ESA section 7 consultation and determined 
that sea turtle handling, alone, would not obviate the need to prohibit 
fishing shallow sets.
    Comment 4: Regardless of whether a sea turtle has deeply ingested a 
hook or has been lightly hooked, there does not appear to be any 
difference in their behavior based on animals that were released alive 
with satellite transmitter tags.
    Response: More recent analyses of satellite telemetry data from 
transmitters deployed by NMFS' observers were completed to derive 
survival and hazard functions (transmitted tag defects, battery 
failure, transmitter detachment, turtle death) for lightly- and deeply-
hooked loggerheads by modeling time-to-failure of all transmitters 
using nonparametric statistical modeling. Based on these analyses, the 
data indicate that there are significant differences between the 
survival functions for lightly- and deeply-hooked loggerheads within 90 
days after release but no difference between survival functions after 
this time.
    Comment 5: One commenter cited the March 2003 National Geographic 
magazine which states that 35,000 turtles are illegally killed each 
year in northwestern Mexico. The commenter felt that when compared to 
the apparent illegal harvest in Mexico, the longline fishery fishing 
out of California is not hurting the sea turtle population.
    Response: NMFS recognizes that other human activities and natural 
phenomena pose a serious threat to the survival and recovery of 
threatened and endangered species. We recognize that we will not be 
able to recover threatened and endangered species without addressing 
the full range of human activities and natural phenomena that have 
caused these species to decline or could cause these species to become 
extinct in the foreseeable future. Recovering threatened and endangered 
sea turtles, as with other imperilled marine species, will require an 
international, cooperative effort that addresses the full suite of 
threats to those species. Nevertheless, NMFS' task is to identify the 
direct and indirect effects of the FMP fisheries to determine if the 
proposed management regime is likely to contribute to the endangerment 
of threatened and endangered species by appreciably reducing their 
likelihood of both surviving and recovering in the wild. NMFS 
considered the direct harvest of sea turtles in Mexico as part of the 
environmental baseline of the biological opinion and concluded that the 
FMP fishery will jeopardize the continued existence of loggerhead sea 
turtles.
    Comment 6: California longliners have been working on implementing 
a sea turtle recovery program in Mexico. If the longline fishery is 
closed, the California longliners will likely end their current effort 
to fund sea turtle restoration projects in Baja, Mexico.
    Response: NMFS commends the efforts of the West Coast-based 
longliners to implement a sea turtle recovery program in Mexico. 
However, NMFS is required to analyze the effects of the West Coast-
based longline fishery on listed species and cannot rely upon the 
potential benefits that are not immediately realized from conservation 
efforts such as nesting beach protection and educational programs.
    Comment 7: Prohibiting swordfish fishing will severely impact the 
annual income of the longline fishermen off the California coast.
    Response: According to the analyses submitted by the Council, 
average annual profits of the West Coast-based longline fishery 
targeting swordfish is estimated at $6.7 million. Assuming all the 
vessels ceased fishing, this would be the economic loss to the fishery. 
NMFS

[[Page 11542]]

recognizes that there will be economic consequences to the regulated 
industry. However, many of the longline vessels have historically 
fished under the Western Pacific Pelagic fishery management plan's 
limited entry permit and would likely to return to Hawaii to target 
tuna or target swordfish under the proposed management plan submitted 
by the Western Pacific Council.
    Comment 8: NMFS cannot propose to implement a prohibition on 
shallow longline sets for swordfish on the high seas in the Pacific 
Ocean east of the 150[deg] West Longitude because the Council rejected 
this alternative citing insufficient evidence to justify a prohibition.
    Response: Under the Magnuson-Stevens Fishery Conservation and 
Management Act, NMFS may disapprove or partially approve a plan if the 
plan is not consistent with any applicable law. Based on the ESA 
section 7 consultation, NMFS concluded that the FMP as proposed by the 
Council was likely to jeopardize the continued existence of loggerhead 
sea turtles. Based on that analysis, NMFS partially disapproved the 
Council's plan. NMFS is now implementing this final rule pursuant to 
its authority under the ESA.
    Comment 9: NMFS cannot rely on either the 2001 or 2002 biological 
opinions on the Western Pacific Pelagics Fishery Management Plan 
because of the order issued by the United States District Court for the 
District of Columbia states that NMFS cannot validly rely on either 
opinion in assisting the effects of a fishery on listed species or 
elaborating appropriate management measures.
    Response: NMFS consulted separately on the FMP and concluded in its 
Febrary 4, 2004, biological opinion that the FMP without this 
regulation would likely jeopardize loggerhead sea turtles. The Court 
vacated the November 2002 biological opinion on the Western Pacific 
Pelagics Fishery Management Plan because NMFS had not treated the 
plaintiffs (Hawaii Longline Association) as applicants in preparation 
of the March 2001 biological opinion, and this procedural error 
affected the preparation of the November 2002 biological opinion. The 
Court chose not to evaluate or rule on whether the data, analysis and 
conclusions in those opinions were correct.
    Comment 10: NMFS cannot issue an anticipatory regulatory proposal 
such as proposing to prohibit swordfish sets because this raises ``the 
specter of a foregone conclusion'' which is impermissable under the 
ESA.
    Response: NMFS is authorized to promulgate regulations as may be 
appropriate to enforce provisions of the ESA. NMFS is promulgating this 
rule after the biological opinion concluded that the FMP was likely to 
jeopardize loggerhead sea turtles without this rule.
    Comment 11: Data used to assess the impacts of the West Coast-based 
longline fishery are not sufficient to make a decision to prohibit 
shallow sets targeting swordfish.
    Response: At the time the Council made its recommendation, there 
were sufficient data to determine that the fishery was taking numerous 
sea turtles incidental to fishing operations. In addition, the Council 
was aware that NMFS had significant concerns about the number of sea 
turtles that were expected to be captured incidentally to the continued 
operation of the West Coast-based pelagic longline fishery based on the 
severe decline and lack of recovery in loggerhead and leatherback sea 
turtles populations, and the extensive analyses conducted by the agency 
on existing threats to these populations.
    Comment 12: Similarities between the West Coast-based and the 
Hawaii-based pelagic longline fisheries suggest that there should be 
similar regulatory measures to manage the two fisheries. As a result, 
NMFS should propose regulations similar to the emergency regulations 
proposed by the Western Pacific Fishery Management Council that would 
allow swordfish fishing at 75 percent of historic levels and the use of 
circle hooks with mackerel bait in place of J hooks baited with squid 
for the West Coast-based longline vessels.
    Response: The Council is responsible for providing management and 
conservation recommendations that address concerns about the effect of 
the FMP prosecuted off the U.S. West Coast and on ocean resources 
caught incidentally. NMFS anticipates that the Council will consider 
alternative management measures similar to those proposed by the 
Western Pacific Council using the framework procedures in the HMS FMP. 
NMFS will consider any such proposals that the Council submits which 
might lessen the burden to fishermen while maintaining adequate 
protection of sea turtles. NMFS will fully support the Council in 
examination and selection of appropriate protective measures.
    Comment 13: One commenter questioned whether the post-hooking 
mortality estimates used to estimate the level of impacts by the 
fishery are consistent with the best scientific and commercial data 
available as required by the ESA. In addition, the commenter requested 
that NMFS use the results from the post-hooking mortality workshop 
scheduled to convene in January.
    Response: On January 15-16, 2004, a workshop on marine turtle 
longline post-interaction mortality was convened. Seventeen experts in 
the area of biology, anatomy/physiology, veterinary medicine, satellite 
telemetry and longline gear deployment participated in the workshop. 
Consideration of the workshop discussion, along with a comprehensive 
review of all of the information available on the issue has led to the 
modification of the February 2001 criteria. The February 2001 injury 
categories have been expanded to better describe the specific nature of 
the interaction. The February 2001 criteria described two categories 
for mouth hooking: (1) Hook does not penetrate internal mouth 
structure; and (2) mouth hooked (penetrates) or ingested hook. The new 
criteria divides the mouth hooking event into three components to 
reflect the severity of the injury and to account for the probable 
improvement in survivorship resulting from removal of gear, where 
appropriate, for each injury. The three components consist of: (1) 
hooked in esophagus at or below the heart (insertion point of the hook 
is not visible when viewed through the open mouth; (2) hooked in 
cervical esophagus, glottis, jaw joint, soft palate, or adnexa 
(insertion point of the hook is visible when viewed through the open 
mouth); and (3) hooked in lower jaw (not adnexa). The new criteria, 
also, separates external hooking from mouth hooking, eliminates the 
``no injury'' category, and adds a new category for comatose/
resuscitated sea turtles. NMFS has used these new criteria in the 
analyses to evaluate the effects of the West Coast-based longline 
fishery on listed sea turtle populations.
    Comment 14: One commenter proposed that NMFS implement a single 
regulation to manage longline fishing in the Pacific Ocean under 
section 11(f) of the ESA, rather than the Magnuson-Stevens Fishery 
Conservation and Management Act, that would prohibit U.S. flagged 
vessels from engaging in shallow set swordfish style longline fishing 
anywhere in the Pacific, and likewise would prohibit the landing of any 
longline caught swordfish in any U.S. port in the Pacific.
    Response: Congress passed the Magnuson-Stevens Fishery Conservation 
and Management Act as the primary mechanism for managing fisheries of 
the United States. The regional fishery management councils are to 
exercise sound judgment in the

[[Page 11543]]

stewardship of fishery resources through the preparation, monitoring, 
and revision of such plans under circumstances which will enable the 
States, the fishing industry, consumer and environmental organizations 
and other interested persons to participate in, and advise on, the 
establishment and administration of such plans. Clearly, Congress 
envisioned the Magnuson-Stevens Fishery Conservation and Management Act 
as the tool for NMFS to use to manage fisheries. However, where the 
Council process fails to address the mandates of the ESA, NMFS can 
excercise its authority under the ESA. Further, the Western Pacific 
Fisheries Management Council has proposed a regulation that would allow 
swordfish fishing but with modified gear that should reduce 
interactions.
    Comment 15: One commenter believes that the proposed rule should be 
further modified to prohibit all pelagic longlining, regardless of 
whether it targets tuna or swordfish, because pelagic longline fishing 
has not demonstrated an elimination of all mortality to leatherback sea 
turtles. An alternative to completely banning longline gear would be to 
implement a time and area closure that is 100 percent effective at 
eliminating leatherback sea turtle mortality.
    Response: Based on the analyses in the biological opinion 
evaluating the effects of the FMP on listed species, including the 
leatherback sea turtle, NMFS concluded that longline fishing targeting 
tuna east of the 150[deg] W. long. would not jeopardize the continued 
existence of leatherback sea turtles. As a result, NMFS has determined 
that a complete ban on all longline fishing east of the 150[deg] W. 
long. is not warranted.
    Comment 16: Unless gear modifications can eliminate the mortality 
of leatherback sea turtles, a reduction of 60 percent, 70 percent, or 
even 90 percent is not sufficient.
    Response: Under the ESA, NMFS is mandated to insure that any action 
authorized, funded, or carried out by an agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of habitat of such species. After completing the section 7 
consultation, NMFS concludes that some leatherback mortality will not 
jeopardize the continued existence of the species.
    Comment 17: NMFS should close the West Coast-based longline fishery 
immediately via the immediate promulgation of an emergency regulation 
rather than through an extended notice and comment rulemaking process.
    Response: NMFS undertook what it determined to be the preferable 
method of ensuring the fishery is managed in a manner that avoids the 
likelihood of jeopardizing the continued existence of Pacific sea 
turtle populations while providing due process.
    Comment 18: Many commmenters urged NMFS to take a more proactive 
role in promoting international agreements that would close these 
waters to vessels from other countries that may be catching and killing 
leatherback and other sea turtles while fishing for swordfish.
    Response: NMFS is dedicated to protecting and preserving living 
marine resources and their habitat through scientific research, 
management, enforcement, and international agreements. Recently, NMFS 
partnered with the Inter-American Tropical Tuna Commission to conduct 
training workshops for sea turtle bycatch reduction, attended by over 
800 fishermen throughout Ecuador. The agency will participate in 
similar workshops in Costa Rica this spring. In addition, NMFS 
continues to promote international collaboration and outreach efforts 
to share research information on possible new conservation measures for 
sea turtles. These are all very important issues for NMFS.

West Coast-based Fishing Effort

    At the time when NMFS issued the proposed rule, preliminary data 
suggested that the West Coast-based longline fishing fleet would set 
approximately 1.55 million hooks each calendar year. To evaluate 
whether this preliminary estimate in the FMP EIS was the best available 
information, NMFS reviewed and analyzed the HSFCA logbook data to 
determine the number of active vessels and the number of reported sets 
and hooks. Comparing these data with the NMFS observer program data and 
records, NMFS determined that the preliminary estimates were too high. 
As a result, NMFS corrected the information about the number of active 
vessels during calendar years 2002 and 2003, and decreased the 
estimated number of expected fishing effort to one million hooks.

Estimated Sea Turtle Take Levels

    There are two sets of data from which rates of sea turtle 
interactions in the West Coast-based pelagic longline fishery could be 
derived: (1) Data from observers on Hawaii-based longline vessels 
operating in the same areas as the West Coast-based pelagic longline 
vessels; and (2) data from observers on West Coast-based pelagic 
longline vessels. Vessels in the West Coast-based pelagic longline 
fishery fish in the same manner, and frequently in the same area, as 
vessels that had been targeting swordfish in the Hawaii-based longline 
fishery. Because of the strong similarities between these two fisheries 
and the limited amount of observer data available for the West Coast-
based pelagic longline fleet alone, NMFS concluded that using the 
combined observer data from the Hawaii-based and West Coast-based 
longline fleets for fishing east of 150[deg] W. long. is more 
representative of the sea turtle interaction rates that can be expected 
to occur throughout the West Coast-based pelagic longline fishery.
    Using the combined observer data, NMFS developed estimates of sea 
turtle take levels that would result from the West Coast-based pelagic 
longline fishery. NMFS assumed that the West Coast-based pelagic 
longline fleet deploys one million hooks east of 150[deg] W. long., 
NMFS estimates the fishery under the FMP would result in the annual 
capture of 126 to 195 loggerhead, 23 to 57 leatherback, and 1 to 11 
olive ridley sea turtles. Of these, NMFS estimates that the West Coast-
based pelagic longline fishery under the management measures proposed 
by the Council would result in the annual mortality of 42 to 91 
loggerhead sea turtles, 4 to 25 leatherback sea turtles, and 1 to 4 
olive ridley sea turtles.

Impacts to Sea Turtle Populations

    Based on the analyses in the ESA section 7 consultation, NMFS 
concluded that if the fisheries under the FMP included shallow longline 
sets, the FMP is likely to jeopardize the continued existence of 
loggerhead sea turtles. However, when analyzed in conjunction with the 
prohibition of shallow longline sets east of the 150[deg] West long. by 
West Coast-based pelagic longline vessels, the final conclusion for 
loggerhead sea turtles is that the fisheries operating under the FMP 
are not likely to jeopardize the continued existence of loggerhead sea 
turtles.
    As a result, NMFS is proposing to implement restrictions in the 
West Coast-based pelagic longline fishery in waters east of 150[deg] W. 
long. to conserve leatherback and loggerhead sea turtles as required 
under the ESA. Under this final rule, West Coast-based pelagic longline 
vessels will be prohibited from making shallow longline sets on the 
high seas in the Pacific Ocean east of 150[deg] W. long. The 
prohibition of shallow longline sets west of 150[deg] W. long. proposed 
under the FMP would also apply.

[[Page 11544]]

    There are several other factors that may ultimately affect the 
management of the West Coast-based pelagic longline fishery. As noted, 
the FMP contains framework procedures by which adjustments in 
conservation and management measures may be made through regulatory 
amendments if warranted by available information and conditions. 
Further, the FMP recognizes a potential for exempted fishing permits 
that allow testing of alternative gear and/or techniques that might 
demonstrate that longline fishing can be conducted in a manner that 
will not adversely affect protected species or that will result in 
lower levels of bycatch. NMFS anticipates that the Council will review 
information as it is generated to consider possible changes in longline 
fishing regulations and may propose changes. NMFS will consider any 
such proposals.

Classification

    NMFS has determined that this final rule is consistent with the ESA 
and other applicable laws.
    The impacts of this action and alternatives are evaluated in 
accordance with the National Environmental Policy Act as the High Seas 
Pelagic Longline Alternative 3 in the EIS prepared by the Council (see 
ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.
    A combined RIR/IRFA was prepared that describes the economic 
impacts of the Council's FMP, which includes an analysis of this 
proposed action as High Seas Pelagic Longline Alternative 3. The RIR/
IRFA is available from the Council (see ADDRESSES). No comments were 
received on the RIR/IRFA. The FRFA is available from NMFS (see 
ADDRESSES).
    A summary of the RIR/RFA follows:
    The SUMMARY and SUPPLEMENTARY INFORMATION sections of this rule 
provide a description of the action, why it is being considered, and 
the legal basis for this action. That information is not repeated here.
    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.
    This regulation imposes controls on the fleet of approximately 21 
longline vessels that fish principally out of California ports for 
swordfish and associated species. 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 rule. For most of the longline 
vessels involved, swordfish caught by longline gear makes up more than 
half of the total revenue from fish sales. Table 1 presents total ex-
vessel revenue and dependence on swordfish landings for the 38 West 
coast-based vessels with high seas pelagic longline swordfish landings 
in 2001, broken down by the number of vessels with varying percent 
dependence on swordfish. NMFS believes these data are representative of 
2002 fishing vessel revenues.

Table 1: Total ex-vessel revenue and dependence on swordfish for 38 West-
  coast-based vessels with high seas pelagic longline landings in 2001.
------------------------------------------------------------------------
                   Dependence on
                     High Seas                          Average Percent
                  Longline Caught   Average Total Ex-       Longline
   Number of         Swordfish      vessel Revenue ($/     Swordfish
    Vessels         (category of         vessel)           (swordfish
                 swordfish revenue/                      revenue/total
                   total revenue)                           revenue)
------------------------------------------------------------------------
4                         <50%           $228,951             32.57%
3                       50-70%           $170,067             60.99%
3                70-80%       $222,089             76.66%
4                80-90%       $258,335             86.77%
13               90-95%       $182,211             93.26%
11               95%          $219,885             97.57%
------------------------------------------------------------------------

    The impacts of alternatives to this action were evaluated in the 
RIR/IRFA. Three alternatives were considered for managing the high seas 
pelagic longline fishery. Under Alternative 1 (Status Quo), the FMP 
would not impose regulations on this fishery. The Council assumes that 
in the short-run, the fishery would continue to operate as it currently 
does, earning average annual profits of $6.7 million. However, in the 
long-run, the Council expects that regulations would be established 
under other authorities, due to concerns over unregulated bycatch, such 
that over time the fishery would disappear, and long-run profits would 
become zero as the fishery was phased out.
    Alternative 2 (Council Proposed Action) would maintain the fishery, 
allowing fishermen to continue targeting swordfish east of 150[deg] W. 
long., but impose some additional costs on longliners targeting 
swordfish on the high seas. Short-run average annual profits would 
remain at $6.7 million, minus the cost of adopting turtle and sea bird 
mitigation measures, accommodating observers, and using monitoring 
equipment. NMFS is developing guidelines for the design and performance 
standards of equipment required for the handling of incidentally caught 
sea turtles. The required tools can be purchased, for an estimated 
maximum cost of $2,000 per vessel, but vessel owners may also be able 
use the guidelines to fabricate the equipment with lower cost 
materials. Vessel owners do not pay an observer's salary, but do bear 
costs associated with providing room and board for the observer. 
Additionally, carrying an observer may increase the cost of insurance 
that the vessel carries. Vessel monitoring equipment costs 
approximately $2,000 to purchase and $500 to install, and would require 
annual maintenance estimated to cost approximately 20 percent of the 
purchase price per year. However, despite the equipment costs, the 
fishery would be able to land swordfish, and so over 25 years, the 
present value of long-run profits relative to the status quo would 
range between $78 and $105 million, using 7 percent and 4 percent 
discount rates, respectively. NMFS is not adopting the Council's 
proposed action because it does not adequately reduce the incidental 
capture and mortality of loggerhead sea turtles.
    Alternative 3, which is the action adopted by NMFS, would prohibit 
fishermen from targeting swordfish east of 150[deg] W. long. Swordfish 
are the target species of this fishery. This would effectively 
eliminate all but incidental swordfish landings and the short- and 
long-run profits currently associated with landing swordfish ($6.7 
million, and $78 million to $105 million, respectively), at least until 
alternative fishing opportunities are identified. This loss assumes 
that all vessels in this fishery cease fishing, although longline 
fishing targeting tuna out of West Coast ports or Hawaii may be an 
alternative. However, 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 keeping with the intent of Executive Order 13132 to provide 
continuing and meaningful dialogue on issues of mutual state and 
Federal interest, NMFS conferred with the States of California, Oregon, 
and Washington regarding this rule. NMFS has met with State Council and 
Plan Development Team representatives throughout the FMP development 
process. No comments were received

[[Page 11545]]

from the States opposing the prohibition of shallow sets east of the 
150[deg] W. long. and no objection has been raised by the Council. NMFS 
intends to continue engaging in informal and formal contacts with these 
States during the implementation of this final rule and amendments to 
the FMP.

List of Subjects in 50 CFR Part 223

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

    Dated: March 5, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended to 
read as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 is revised 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.; 16 U.S.C. 5503(d) for Sec.  
223.206(d)(9).

0
2. In Sec.  223.206, a new paragraph (d)(9) is added to read as 
follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (9) Restrictions applicable to Pacific pelagic longline vessels. In 
addition to the general prohibitions specified in Sec.  600.725 of 
Chapter VI, it is unlawful for any person who is not operating under a 
western Pacific longline permit under Sec.  660.21 to do any of the 
following on the high seas of the Pacific Ocean east of 150[deg] W. 
long. and north of the equator (0[deg] N. lat.):
    (i) Direct fishing effort toward the harvest of swordfish (Xiphias 
gladius) using longline gear.
    (ii) Possess a light stick on board a longline vessel. A light 
stick as used in this paragraph is any type of light emitting device, 
including any fluorescent glow bead, chemical, or electrically powered 
light that is affixed underwater to the longline gear.
    (iii) An operator of a longline vessel subject to this section may 
land or possess no more than 10 swordfish from a fishing trip where any 
part of the trip included fishing east of 150[deg] W. long. and north 
of the equator (0[deg] N. lat.).
    (iv) Fail to employ basket-style longline gear such that the 
mainline is deployed slack when fishing.
    (v) When a conventional monofilament longline is deployed by a 
vessel, no fewer than 15 branch lines may be set between any two 
floats. Vessel operators using basket-style longline gear must set a 
minimum of 10 branch lines between any 2 floats.
    (vi) 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.
[FR Doc. 04-5553 Filed 3-10-04; 8:45 am]
BILLING CODE 3510-22-S