[Federal Register Volume 69, Number 64 (Friday, April 2, 2004)]
[Rules and Regulations]
[Pages 17329-17354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7526]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 0401130013-4098-02; 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: Final rule.

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SUMMARY: NMFS has approved a regulatory amendment under the Fishery 
Management Plan for the Pelagic Fisheries of the Western Pacific Region 
(FMP) submitted by the Western Pacific Fishery Management Council 
(Council) and issues this final rule to establish a number of 
conservation and

[[Page 17330]]

management measures for the fisheries managed under the FMP. This final 
rule is intended to achieve certain objectives of the FMP, including 
achieving optimum yield for FMP-managed species while avoiding the 
likelihood of jeopardizing the continued existence of any species 
listed as endangered or threatened under the Endangered Species Act 
(ESA). This final rule eliminates a seasonal closure for longline 
fishing in an area south of the Hawaiian Islands and reopens the 
swordfish-directed component of the Hawaii-based longline fishery. In 
order to minimize adverse impacts on sea turtles, the swordfish 
component of the Hawaii-based longline fishery will be subject to 
restrictions on the types of hooks and bait that may be used, annual 
fleet-wide limits on fishery interactions with leatherback and 
loggerhead sea turtles, an annual fleet-wide limit on fishing effort, 
and other mitigation measures.

DATES: Effective April 2, 2004, except for the amendments to Sec.  
660.22 (ii), (ll), (nn), and (oo), Sec.  660.32 (a) and (b), and Sec.  
660.33 (f) and (g), which are effective May 3, 2004.

ADDRESSES: Copies of the Final Supplemental Environmental Impact 
Statement (FSEIS) for this action, the Record of Decision (ROD) for the 
FSEIS, the Regulatory Impact Review (RIR) and Final Regulatory 
Flexibility Analysis (FRFA) for this regulatory action, and the Final 
Environmental Impact Statement (FEIS) that the FSEIS supplements 
(issued by NMFS on March 30, 2001) are available from Dr. Samuel 
Pooley, Acting Regional Administrator, NMFS, Pacific Islands Regional 
Office (PIRO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-
4700. These documents are also available on the Internet at the website 
of PIRO, http://swr.nmfs.noaa.gov/pir/. The FSEIS, FRFA, 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: On January 28, 2004, NMFS published a 
proposed rule (69 FR 4098) in response to the urgent need to provide 
adequate protections for sea turtles and to the results of recent 
research in the Atlantic Ocean on mitigation technologies for sea 
turtle interactions in pelagic longline fisheries.
    This final rule implements both a regulatory amendment recommended 
by the Western Pacific Fishery Management Council (Council) under the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region (FMP) and Court rulings made in Hawaii Longline 
Association v. NMFS (D.D.C., Civ. No. 01-0765) that vacated a June 12, 
2002, rule containing protective measures for sea turtles, effective 
April 1, 2004, as discussed further in the proposed rule.
    On January 23, 2004, the Environmental Protection Agency (EPA) 
published in the Federal Register (69 FR 3340) a notice of availability 
of a draft supplemental environmental impact statement (DSEIS) prepared 
for this action pursuant to the National Environmental Policy Act 
(NEPA). The public comment period for the DSEIS lasted until February 
23, 2004. The abbreviated comment period, approved by the EPA, was 
needed to facilitate completion of the SEIS so that necessary turtle 
conservation measures for the Hawaii-based longline fishery could be 
effective by April 1, 2004, when the current turtle-related regulations 
will be vacated by Court Order. EPA published a notice of availability 
of a final supplemental environmental impact statement (FSEIS) for this 
action on March 19, 2004, at 69 FR 13036.
    On February 23, 2004, NMFS concluded consultation and issued a 
biological opinion under section 7 of the Endangered Species Act on the 
pelagic fisheries of the western Pacific region as they would be 
managed under the measures implemented through this final rule. The 
biological opinion found that the fisheries are not likely to 
jeopardize the continued existence of any ESA-listed species under the 
jurisdiction of NMFS.
    The proposed rule provides further background on the processes and 
analyses conducted under the NEPA and other applicable laws for this 
regulatory action, the ESA section 7 consultation history for the 
western Pacific pelagic fisheries, the history of litigation related to 
the western Pacific pelagic fisheries, the expected effects of this 
final rule, and the rationale for this final rule.
    The measures contained in this final rule are summarized as 
follows:

Management Measures Eliminated by Court Ruling

    As required by the Court rulings referred to above, this final rule 
eliminates: (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[deg] 
N. lat., and between 145[deg] W. long. and 180[deg] 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 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.

New Management Measures

    To implement the regulatory amendment proposed by the Council, this 
final rule: (1) establishes an annual effort limit on the amount of 
shallow-set longline fishing effort north of the equator that may be 
collectively exerted by Hawaii-based longline vessels (2,120 shallow-
sets per year); (2) divides and distributes this shallow-set annual 
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 (according to 
the number of permits held) that provide written notice to NMFS no 
later than November 1 prior to the start of the calendar year of their 
interest in receiving such certificates; (3) prohibits 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) requires that operators of Hawaii-based longline 
vessels submit to the Regional Administrator within 72 hours of each 
landing of pelagic management unit species, with the logbooks, one 
valid shallow-set certificate for every shallow-set made north of the 
equator during the trip; (5) requires 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) requires that 
Hawaii-based longline vessels, when making

[[Page 17331]]

shallow-sets north of the equator, use only mackerel-type bait; (7) 
establishes annual limits on the numbers of interactions between 
leatherback and loggerhead sea turtles and Hawaii-based longline 
vessels while engaged in shallow-setting, set at 16 and 17 for 
leatherback and loggerhead sea turtles, respectively (the limits are 
equal to the annual number of turtles expected to be captured for the 
respective species in the shallow-set component of the Hawaii-based 
fishery, as established in the biological opinion issued by NMFS 
pursuant to section 7 of the ESA); (8) establishes 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 at least one (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) requires 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) requires that 
operators of Hawaii-based longline vessels carry and use NMFS-approved 
de-hooking devices; and (11) requires that Hawaii-based longline 
vessels, when making shallow-sets north of 23[deg] N. lat., start and 
complete the deployment of longline gear during the nighttime 
(specifically, no earlier than one hour after local sunset and no later 
than local sunrise).
    Under this final rule, holders of Hawaii longline limited access 
permits must, in order to receive shallow-set certificates for a given 
calendar year, provide written notice to NMFS of their interest in 
receiving such certificates no later than November 1 prior to the start 
of the calendar year (for the 2004 fishing year, the deadline is May 1, 
2004). Although NMFS intends to deliver annual reminders of this 
requirement to all permit holders, the permit holders will be 
responsible for providing notice of their interest regardless of 
whether they receive a reminder from NMFS. Such notice must be provided 
to the Regional Administrator, NMFS, Pacific Islands Regional Office 
(see ADDRESSES), and it should say ``attention: swordfish 
certificates.''
    The Council's proposed regulatory amendment was accompanied by 
proposals to implement or continue implementing five off-site sea 
turtle conservation projects. These projects are aimed at protecting 
affected sea turtle populations on their nesting beaches and in their 
nearshore foraging grounds at sites in Southeast Asia, Mexico, and 
Japan. These projects are not part of this final rule, but they were 
considered and assessed by the Council in conjunction with the 
regulatory elements of its proposed action and were found to be 
important components of sea turtle conservation in the Pacific.

Comments and Responses

    NMFS received and considered comments on the proposed rule from a 
number of interested parties. NMFS responds to these comments as 
follows:
    Comment 1: One commenter stated that in the absence of vessel 
observers there is no incentive for fishermen to self-report 
leatherback and loggerhead takes and that the proposed measure may not 
protect these endangered species.
    Response: Self-reporting of sea turtle interactions is not 
necessary to provide adequate protection to sea turtles or more 
specifically, to ensure compliance with the annual interaction limits. 
First, even without the precautionary annual limits on sea turtle 
interactions, the other measures in this final rule, including the 
required hook and bait types and the limit on shallow-set effort, are 
expected to adequately protect sea turtle species. Second, it is 
acknowledged that the sea turtle interaction limits will require 
substantial coverage by vessel observers in order to implemented. 
Although these measures do not mandate any particular minimum level of 
observer coverage, existing regulations require all longline fishing 
vessels to accept a vessel observer if required by NMFS. Further, the 
biological opinion issued by the NMFS Office of Protected Resources on 
February 23, 2004, under section 7 of the ESA for the pelagic fisheries 
of the western Pacific region (``2004 biological opinion'') includes an 
incidental take statement with reasonable and prudent measures and 
implementing terms and conditions that mandate 100-percent observer 
coverage in the shallow-set component of the Hawaii-based longline 
fishery and a minimum of 20-percent coverage in the deep-set component. 
NMFS intends to implement these mandates. These levels of observer 
coverage will provide for reliable and timely determinations of the 
numbers of sea turtle interactions occurring in the fishery, which will 
facilitate effective enforcement of the annual limits on interactions 
with leatherback and loggerhead sea turtles in the shallow-set 
component of the fishery.
    Comment 2: One commenter recommended that the number of shallow-
sets made by a vessel be equated to the number of ``set signatures'' 
observed in NMFS's vessel monitoring system (VMS) program.
    Response: NMFS intends to have 100-percent observer cover age in 
the shallow-set component of the Hawaii-based longline fishery, which 
will ensure compliance with the limits and restrictions related to 
shallow-setting, so monitoring via VMS set signatures is not necessary.
    Comment 3: One commenter stated that deep-setting is proposed to be 
defined in 50 CFR 660.12 as the deployment of longline gear without 
light sticks, but there is no evidence that light sticks have any 
effect on sea turtle catches and there is therefore no reason for this 
measure. The commenter added that the proposed restriction stems from a 
previous NMFS rule that the Court ruled was arbitrary. The commenter 
also stated that there are light products designed specifically for 
tuna fishing (e.g., blinking lights) that can improve catches and that 
the proposed definition could therefore reduce the potential efficiency 
of fishing vessels while having no beneficial effect on sea turtles.
    Response: NMFS acknowledges that certain light devices for deep-
set, tuna-directed longlining may have benefits to fishing operations. 
However, lacking detailed information on those potential benefits, NMFS 
has determined the potential benefits are outweighed by the need to 
ensure compliance with the restrictions on shallow-setting, including 
the annual effort limit on shallow-set effort. Light sticks are 
normally used on shallow-sets to target swordfish. Although light 
sticks may also be used on deep-sets to target tuna, allowing them on 
board during deep-setting trips would provide an opportunity for vessel 
operators on trips without observers to reconfigure their gear at sea 
and illegally shallow-set to target swordfish. No Court ruled on the 
substance of the June 2002 turtle rule, or questioned the prohibition 
on light sticks; the Court invalidated the June 2002 rule on procedural 
grounds.
    Comment 4: One commenter stated that deep-setting during the day to 
harvest swordfish while avoiding turtles was and is still a good idea. 
The limited tests conducted to date show poor swordfish catches because 
of operational problems, but the results were nonetheless encouraging. 
The commenter also stated that the longline

[[Page 17332]]

fleet should be allowed to explore this option.
    Response: The Council and NMFS are considering research into the 
feasibility of deep-setting for swordfish, but until the findings of 
such research are available, limits on the possession and landing of 
swordfish by deep-setting longline vessels have been determined to be 
necessary to ensure compliance with the restrictions on shallow-
setting.
    Comment 5: One commenter stated that the proposed prohibition on 
the possession or landing of more than 10 swordfish in the tuna 
component of the Hawaii-based longline fishery is unwarranted and there 
is no evidence that swordfish are overfished in the region. The 
commenter also stated that the use of light on deep sets may increase 
catches of swordfish, so deep-setting for swordfish may be economical 
while successfully avoiding sea turtles.
    Response: The commenter is correct that swordfish have not been 
determined to be overfished in the region. This measure is necessary to 
conserve sea turtles by ensuring compliance with the restrictions on 
shallow-setting. Without a limit on the possession and landing of 
swordfish by vessels engaged in deep-setting, vessel operators on trips 
without observers could illegally target and land unlimited quantities 
of swordfish and claim that they were legally caught incidentally on 
deep-sets. Although swordfish is sometimes caught incidentally on deep-
sets, landings data show catching more than 10 swordfish on a tuna-
directed trip would be a very rare event.
    Comment 6: One commenter stated that the proposed measures to 
mitigate sea turtle interactions (the requirements to use circle hooks 
and mackerel-type bait in the shallow-set component of the Hawaii-based 
longline fishery) are not universally exportable solutions, because 
mackerel does not catch swordfish in some areas. The commenter also 
stated that it is important that industry not be handcuffed 
unnecessarily so that other options can be explored.
    Response: One of the expected benefits of the model swordfish 
fishery is that valuable information will be generated regarding the 
effectiveness in the Pacific of circle hooks and mackerel-type bait 
with respect to minimizing sea turtle interactions and mortalities. 
Further, the results of recent research in the Atlantic indicate 
substantially enhanced swordfish catch rates with the hook and bait 
types that will be required under this final rule. NMFS and the Council 
will continue to explore viable options to achieve optimum yield in the 
longline fisheries while minimizing adverse impacts to protected 
species.
    Comment 7: One commenter stated that the potential adverse impacts 
on sea turtles and seabirds of reopening this fishery are serious 
enough to warrant continued closure of the fishery. The commenter 
requested that if the fishery is opened, more effective seabird 
avoidance measures be implemented and seabird avoidance measures be 
required in all areas.
    Response: The 2004 biological opinion concludes that the western 
Pacific pelagic fisheries, as managed under the proposed measures, are 
not likely to jeopardize the continued existence of sea turtle species. 
This final rule does not affect the existing requirements to use 
seabird mitigation measures in the Hawaii-based longline fishery when 
fishing north of 23[deg] N. latitude, including the use of blue-dyed 
bait, strategic discarding of offal, and, when deep-setting with 
monofilament main longline, the use of weighted branch lines and a 
line-setting machine or line shooter. In addition, this final rule 
requires that the line-setting procedure take place at night when 
shallow-setting north of 23[deg] N. latitude in order to avoid 
interactions with seabirds. The potential implementation of additional 
seabird avoidance measures in the longline fisheries, including the use 
of side-setting, setting chutes, and streamer lines, is currently being 
explored by the Council and NMFS and was discussed at the Council's 
122nd meeting in March 2004. The Council staff is developing 
alternative measures, including side setting and setting chutes, for 
the Council's action at its 123rd meeting in June 2004. Consideration 
will be given to the areas in which the measures should be implemented. 
NMFS has initiated consultation under section 7 of the ESA with the 
U.S. Fish and Wildlife Service on the short-tailed albatross with 
respect to this action. Although the outcome of that consultation is 
not yet known, it is noted that the U.S. Fish and Wildlife Service 
issued a biological opinion on the short-tailed albatross in November 
2000 for an action that was less restrictive with respect to shallow-
setting than this action, and the opinion found that the Hawaii-based 
longline fishery was not likely to jeopardize the continued existence 
of the short-tailed albatross.
    Comment 8: One commenter stated that the current regulations 
requiring blue-dyed bait, line shooters, and night setting are no 
longer based on the best available science. The commenter also stated 
that the use of setting chutes, side-setting, and streamer lines has 
been proven to be more effective and should be required.
    Response: See the response to Comment 7 with respect to seabirds. 
The utility of the existing seabird avoidance measures will also be 
considered.
    Comment 9: One commenter requested that seabird avoidance measures 
be required in all areas, not just those likely to be frequented by the 
endangered short-tailed albatross (i.e., north of 23[deg] N lat.).
    Response: See response to Comment 7 with respect to seabirds. 
Consideration will also be given to the areas in which those seabird 
avoidance measures should be implemented.
    Comment 10: One commenter stated that prior to authorizing the 
reopening of the swordfish fishery, NMFS must insure that the fishery 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species.
    Response: The 2004 biological opinion concludes that the fishery, 
as managed under these measures, is not likely to jeopardize the 
continued existence of any of the ESA-listed species considered in the 
opinion.
    Comment 11: One commenter requested that the use of straight circle 
hooks be made mandatory in all pelagic longline fishing, both deep and 
shallow.
    Response: There is insufficient information available on the 
effectiveness of circle hooks in deep-set tuna-directed fisheries with 
respect to both sea turtle interactions and target species catches. 
Although some research has been done in the Atlantic on the use of 
circle hooks in tuna-directed longlining, it involved shallow-set 
rather than deep-set longlining, so the results are not directly 
applicable to the longline fisheries in the western Pacific, where tuna 
is generally targeted with deep-set gear. At this time, therefore, 
there is not an adequate basis for requiring that circle hooks be used 
in the deep-set component of the fishery, as it could constrain fishing 
efficiency and comprise the objective of achieving optimum yield. 
However, the Council and NMFS are considering potential research and 
fishery demonstration initiatives in the western Pacific in order to 
assess the potential effectiveness with deep-set longline gear of 
various hook and bait combinations.
    Comment 12: One commenter requested that the fishery be closed once 
the limits for any species in the 2004 biological opinion's incidental 
take statement have been reached.
    Response: Although such a measure would be more conservative with 
respect to sea turtles, NMFS has

[[Page 17333]]

determined that it would be unnecessarily conservative. The interaction 
limits for leatherback and loggerhead sea turtles will also limit, 
albeit indirectly, interactions with other protected species in the 
shallow-set component of the Hawaii-based longline fishery. 
Furthermore, under the ESA, when any of the incidental take limits is 
exceeded, NMFS will reinitiate consultation under section 7 of the ESA, 
at which point the need for more restrictive measures would be 
considered.
    Comment 13: One commenter requested that vessel observer coverage 
be 100 percent for shallow-set longlining and at least 50 percent for 
deep-set longlining.
    Response: The terms and conditions of the incidental take statement 
in the 2004 biological opinion mandate 100-percent observer coverage in 
the shallow-set component of the Hawaii-based longline fishery and at 
least 20-percent coverage in the deep-set component. NMFS intends to 
implement these levels of coverage. Given the relatively long history 
of the deep-set component and our understanding of patterns of fishing, 
catches, and interactions with protected species, NMFS has determined 
20 percent to be a sufficient level of coverage in the deep-set 
component of the fishery.
    Comment 14: One commenter stated that the comment period after the 
release of the 2004 biological opinion was too brief.
    Response: The consultation process under section 7 of the ESA does 
not provide for a public comment period, but NMFS considered comments 
received during 30-day comment periods for both the proposed rule and 
the draft supplemental environmental impact statement for the action.
    Comment 15: Two commenters stated that results from the NED 
[Northeast Distant Waters] experiments are too preliminary to form the 
basis for reopening the fishery.
    Response: The use of modified hooks to reduce and mitigate sea 
turtle interactions has been a focus of research for several years. 
NMFS' Pascagoula Laboratory, in conjunction with the Blue Water 
Fishermen's Association, conducted research between 2001 and 2003 to 
evaluate fishing gear modifications and strategies to reduce and 
mitigate interactions between endangered and threatened sea turtle 
species and longline fishing gear. The area of operations was the NED 
statistical reporting zone in the Western Atlantic Ocean. This area is 
closed to pelagic longline fishing by U.S. flagged vessels with the 
exception of the experimental fishery. Between 2001 and 2002, almost 
700 swordfish-directed shallow-sets were made to test potential sea 
turtle mitigation techniques, which yielded robust and promising 
experimental results. While NMFS and the Council are confident that the 
results from the Atlantic will be reflected to a large degree in the 
western Pacific longline fisheries, these measures are precautionary in 
including the limits on interactions with leatherback and loggerhead 
sea turtles, in case the hook and bait measures are not as successful 
as anticipated.
    Comment 16: One commenter stated that the proposed regulations are 
far less protective of listed species than current measures.
    Response: NMFS acknowledges that the expected rates of interactions 
with sea turtles under the proposed measures are greater than those 
expected under the current management regime. However, the 2004 
biological opinion concludes that the western Pacific pelagic fisheries 
as managed under these proposed measures are not likely to jeopardize 
the continued existence of any of the ESA-listed species considered in 
the opinion. Furthermore, NMFS anticipates that the mitigative hook and 
bait types that will be required in the shallow-set component of the 
Hawaii-based fishery will serve as a model that the longline fleets of 
other nations may adopt, possibly resulting in net positive impacts on 
ESA-listed sea turtle species.
    Comment 17: One commenter stated that authorizing any pelagic 
longline fishing violates NMFS' obligation under the ESA to avoid 
jeopardizing listed species.
    Response: The 2004 biological opinion concludes that the western 
Pacific pelagic fisheries as managed under these measures is not likely 
to jeopardize the continued existence of any of the ESA-listed species 
considered in the opinion.
    Comment 18: One commenter stated that Atlantic experiments did not 
eliminate mortality to leatherback turtles and that any mortality is 
unacceptable. The commenter also stated that using purported reductions 
in mortality as an excuse to reopen the swordfish fishery will not 
benefit sea turtles.
    Response: NMFS acknowledges that the experiments in the Atlantic 
did not result in the development of mitigation measures that would 
eliminate mortality to leatherback sea turtles in longline fisheries, 
and a certain number of mortalities of leatherback turtles are 
anticipated to occur in the western Pacific longline fisheries under 
these measures. However, the best scientific and commercial information 
was used to predict the effects of these measures on leatherback sea 
turtle populations, and it was found that the number of mortalities 
anticipated to result from the western Pacific pelagic fisheries is 
small compared to other sources of mortality and the conduct of the 
fisheries is not likely to jeopardize the continued existence of the 
leatherback sea turtle. One of the measures will limit annual shallow-
set longline effort at about 50 percent of the average annual effort 
during the 1994-1999 period. Another measure will establish annual 
limits on the numbers of interactions with leatherback and loggerhead 
sea turtles, which will ensure that the actual numbers of interactions 
do not exceed the expected rates, as computed in the 2004 biological 
opinion and established in the opinion's incidental take statement.
    The measures may have indirect positive effects on leatherback sea 
turtles and other ESA-listed species. First, the hook and bait types 
that will be required when making shallow longline sets north of the 
equator may serve as models for the longline fleets of other nations to 
adopt. Since foreign fishing fleets exert the majority of longline 
fishing effort in the Pacific, such adoption would likely result in 
substantial decreases in mortalities of leatherback and other sea 
turtles in the Pacific. The degree to which the mitigative hook and 
bait types are adopted by other fleets will likely depend on how they 
affect the catch rates of swordfish and other target species. In the 
Atlantic experiments, swordfish catch rates were enhanced when using 
the required hook-and-bait combination, which suggests that they may 
well serve as attractive models for the longline fleets of other 
nations. Second, if reopening of the U.S. swordfish fishery results in 
a decrease in foreign fishing for swordfish, it is possible that fewer 
turtle interactions or mortalities will occur.
    Comment 19: One commenter stated that eliminating the restrictions 
on swordfish fishing north of the equator and the longline restrictions 
in April and May violates the ESA.
    Response: The 2004 biological opinion concludes that the western 
Pacific pelagic fisheries as managed under these measures are not 
likely to jeopardize the continued existence of any of the ESA-listed 
species considered in the opinion.
    Comment 20: One commenter stated that the proposed regulations 
would violate the ESA and the MMPA with regard to marine mammals.

[[Page 17334]]

    Response: The 2004 biological opinion found that the western 
Pacific pelagic fisheries, as managed under these measures, are not 
likely to adversely affect any ESA-listed marine mammal species. 
Currently, the western Pacific pelagic longline fishery is classified 
as a Category III fishery under the MMPA, which indicates that the 
fishery has a remote likelihood of or no known incidental mortality or 
serious injury of marine mammals. NMFS and the Council are exploring 
ways to reduce and mitigate fishery interactions with marine mammals.
    Comment 21: One commenter stated that NMFS has not defined the 
``Zero Mortality Rate Goal'' (ZMRG) for marine mammals, but the pelagic 
longline fishery exceeds it and that authorization of the fishery 
without a ZMRG violates the MMPA. The commenter further stated that the 
take of false killer whales is not only greater than the ZMRG, but also 
greater than the Potential Biological Removal (PBR) level.
    Response: With respect to the ZMRG, it is not possible to exceed a 
limit not yet established. Currently, the western Pacific pelagic 
longline fishery is classified as a Category III fishery under the 
MMPA, which signifies that the fishery has a remote likelihood of 
incidental mortality or serious injury of marine mammals. NMFS annually 
reviews its categorization of all fisheries and is doing so with this 
fishery.
    Comment 22: Two commenters stated that the take in the fishery of 
migratory birds such as albatross and fulmars violates the Migratory 
Bird Treaty Act (MBTA) because there is no take authorization.
    Response: The MBTA only applies in nearshore waters, seaward to 
three nautical miles (nm) from the shoreline. Since the pelagic 
longline fishery is prohibited from fishing within 25 to 75 nm of the 
Hawaiian Islands (depending on time of year), the MBTA does not apply, 
and therefore, no take authorization is required.
    Comment 23: One commenter stated that the proposed regulations 
would violate the High Seas Fishing Compliance Act (HSFCA) because the 
HSFCA requires NMFS to regulate fishing by U.S. vessels on the high 
seas so as to be consistent with international conservation and 
management measures established pursuant to various international 
agreements such as the Inter-American Convention for the Protection and 
Conservation of Sea Turtles. This Convention was ratified by the U.S. 
and it requires that each party to the Convention take measures to 
reduce, to the greatest extent practicable, the incidental capture, 
retention, harm, or mortality of sea turtles in the course of fishing 
activities, through the regulation of such activities. Presuming that 
NMFS intends to establish HSFCA permit conditions through these 
regulations, the failure of the regulations to reduce sea turtle 
mortality by prohibiting swordfish longlining renders NMFS in violation 
of the HSFCA and the underlying treaties and conventions it implements.
    Response: This final rule implements additional conservation and 
management measures for the protection of sea turtles in fisheries 
managed under the FMP. These measures are consistent with the 
mitigation recommendations of a formal ESA section 7 consultation that 
NMFS underwent during the development of this final rule. The section 7 
consultation for the fishery managed under the FMP covers all fishing 
activities on the high seas by vessels permitted under the FMP. These 
vessels must also have permits under the HSFCA. As such, this 
consultation covered the same underlying fishing operations as are 
permitted under the HSFCA. The consultation covers the issuance of 
permits for these same vessels under both the Magnuson-Stevens Act and 
the HSFCA. NMFS determined that the conservation and management 
measures implemented through this final rule meet the U.S.'s 
obligations under the Inter-American Convention for the Protection and 
Conservation of Sea Turtles to take measures to reduce, to the greatest 
extent practicable, the incidental capture, retention, harm, or 
mortality of sea turtles in the course of fishing activities.
    Comment 24: One commenter expressed opposition to allowing shallow-
setting north of the equator because of the killing of albatrosses and 
other seabirds in the Hawaii-based longline fishery.
    Response: See the response to Comment 7 with respect to seabirds.
    Comment 25: Three commenters requested that if the shallow set 
fishery is reopened, effective seabird avoidance measures be required, 
and also noted that recent research documents the effectiveness of 
streamer lines, weights, and side setting.
    Response: See the response to Comment 7 with respect to seabirds.
    Comment 26: One commenter stated that the invalidation of the 
biological opinion (issued by NMFS in 2001 and 2002) was based on 
procedure, not science, and that NMFS should continue the shallow-set 
fishery closure or adopt effective seabird avoidance measures.
    Response: It is true that the previous biological opinions were 
invalidated on procedural, not substantive, grounds. This final rule is 
not being implemented in response to the invalidation of the previous 
biological opinions, but rather in response to the need to establish 
protective measures for sea turtles given that many of the existing 
protective measures will be eliminated by Court Order on April 1, 2004, 
as well as in response to the promising findings of recent research in 
the Atlantic on new gear technologies available for minimizing 
interactions with sea turtles. In order to minimize adverse impacts on 
seabirds, this final rule also requires that the line-setting procedure 
take place at night when shallow-setting north of 23[deg] N. lat. As 
indicated in the response to Comment 7, additional seabird avoidance 
measures were discussed at the Council's 122nd meeting in March 2004.
    Comment 27: One commenter stated that the January 14, 2004, 
biological assessment and the proposed regulations are deficient under 
the NEPA in their treatment of seabirds.
    Response: The January 14, 2004, biological assessment, prepared by 
the Council and the Hawaii Longline Association, was not intended by 
the drafters to fulfill the requirements of NEPA, nor is it a component 
of consultation with the U.S. Fish and Wildlife Service concerning 
seabirds. In contrast, the regulations to implement the Council's 
proposed management measures are subject to the requirements of NEPA. 
Documentation prepared by the Council and NMFS to comply with NEPA 
included a draft supplemental environmental impact statement (DSEIS), 
the notice of availability for which was published in the Federal 
Register on January 23, 2004. A final SEIS (FSEIS) accompanies this 
final rule. The DSEIS and FSEIS both include assessments of the 
expected effects of the proposed measures on seabirds, using the latest 
available information.
    Comment 28: One commenter stated that the incidental catch of 
seabirds in shallow sets is 51 times greater than in deep sets, and 
that the proposed regulations fail to address this. The commenter 
further stated that using circle hooks and mackerel bait will not 
prevent seabird mortality.
    Response: NMFS acknowledges that the hook and bait types that will 
be required in the shallow-set component of the Hawaii-based fishery 
are unlikely to eliminate the mortality of seabirds, but the relatively 
large size of the required hooks (18/0 or larger) may make them less 
likely to be swallowed by seabirds than the conventionally

[[Page 17335]]

used hooks, and if swallowed, the shape of the required hooks (circle, 
with the barb curving inward toward the shank) may make them less 
likely to be lodged in a bird's gullet, thus reducing the severity of 
interactions and possibly reducing the number of resultant mortalities. 
Also see response to Comment 7.
    Comment 29: One commenter stated that the biological assessment and 
proposed regulations do not use up-to-date albatross data.
    Response: The DSEIS and FSEIS for the action use the best available 
information at the time of the assessment, including fishery 
interaction data. The FSEIS also includes the most recent assessments 
from the U.S. Fish and Wildlife Service concerning albatross 
populations on the Northwestern Hawaiian Islands, which are the most 
likely populations to interact with the Hawaii-based longline fishery.
    Comment 30: Two commenters requested that section 7 consultation 
under the ESA be initiated with the U.S. Fish and Wildlife Service 
before reopening the fishery.
    Response: NMFS has reinitiated ESA section 7 consultation with the 
U.S. Fish and Wildlife Service with respect to the effects of the 
Hawaii-based longline fishery on the short-tailed albatross. See also 
the response to Comment 7. The terms and conditions of the current U.S. 
Fish and Wildlife Service biological opinion, implemented through 
existing regulations, still apply to the fishery.
    Comment 31: One commenter stated that the current action is being 
undertaken in response to the August 31, 2003, decision of Judge 
Kollar-Kotelly in HLA v. NMFS, and because the basis for that decision 
was explicitly procedural, the nature of the ruling makes caution the 
most prudent line of action.
    Response: As discussed in the DSEIS, the Council and NMFS were 
engaged in activities relating to this proposed regulatory amendment 
before the August 31, 2003, decision in the HLA v. NMFS case. The 
identification of new data and new fishing gear technologies that have 
the potential to substantially reduce incidental sea turtle interaction 
rates prompted the Council and NMFS to consider adjustments in the 
regulatory regime. The 2004 biological opinion confirms that the 
adjustments are not likely to jeopardize the continued existence of sea 
turtle species.
    Comment 32: The agency is under no legal obligation to take the 
drastic action in the Proposed Rule to undo regulations intended to 
prevent the longline fishery from jeopardizing the continued existence 
of threatened and endangered sea turtles.
    Response: NMFS acknowledges that it is not obligated to implement 
this particular rule. The measures in this final rule are based on a 
regulatory amendment proposed by the Council, and they were chosen from 
among a range of alternatives in terms of achieving specific 
objectives, including avoiding the likelihood of jeopardizing the 
continued existence of endangered or threatened species. Like the 
regulations currently in place, NMFS has determined that this final 
rule is not likely to jeopardize the continued existence of endangered 
or threatened sea turtles.
    Comment 33: A demonstration tuna fishery using the hook and bait 
combinations tested in the Atlantic should be implemented rather than 
the model swordfish fishery.
    Response: There is insufficient information available at this time 
on the impacts of circle hooks in deep-set tuna longline fisheries, 
such as the fishery conducted around Hawaii, to move forward with such 
a suggestion. Although some research on the efficacy of hook and bait 
types with respect to sea turtle interactions and catch rates of target 
species has been conducted on tuna sets in the Atlantic, the sets 
involved were shallow-sets, so the results are not applicable to the 
Hawaii deep-set fishery. However, the conduct of a Pacific 
demonstration tuna fishery using new hook and bait combinations is 
being considered by NMFS and research into such modifications is a 
discretionary recommendation of the 2004 biological opinion.
    Comment 34: Asserting that re-opening the seasonal southern area 
closure will likely result in increased incidental sea turtle capture 
in the longline fishery in that area, one commenter recommends that 
additional protections for sea turtles be included for the tuna fleet. 
Specifically, the comment suggests including at least 20-percent 
observer coverage during April and May in the area to the south of the 
Hawaiian Islands that prior to this final rule was closed to longline 
fishing during those months, as well as establishing a trigger 
mechanism for closing the area if take levels are exceeded.
    Response: One condition of the incidental take statement in the 
2004 biological opinion is that there must be a minimum of 20-percent 
observer coverage in the tuna component of the Hawaii-based longline 
fishery and 100-percent observer coverage in the swordfish component. 
NMFS intends to implement this mandate. The 2004 biological opinion 
concluded that the proposed action is not likely to jeopardize the 
continued existence of any sea turtle species if the fishery is 
prosecuted in accordance with its recommendations. It also established 
separate take levels for the swordfish and tuna components of the 
fishery. Should the tuna component exceed its authorized take levels, 
NMFS will reinitiate consultation under section 7 of the ESA, at which 
point the need for additional measures would be considered.
    Comment 35: One commenter preferred a mechanism that would close 
the fishery immediately upon reaching any hard cap identified in the 
2004 biological opinion, commenting that the one week advance notice of 
closure of the fishery upon reaching the hard cap is unnecessary and 
potentially harmful to the sea turtles. The ``yellow-light concept'' 
and observer reports should provide ample advance warning of any 
fishery closure. Similar mechanisms should also be put into place if 
rate of capture or mortality per set is much higher than estimated, and 
that should trigger re-initiation of consultation.
    Response: Biological opinions do not include hard caps. This final 
rule includes annual limits on the annual numbers of interactions with 
leatherback and loggerhead sea turtles in the shallow-set component of 
the Hawaii-based longline fishery, and although the limits are based on 
the findings of the biological opinion, they are not established or 
mandated by the biological opinion. The purpose of establishing these 
limits is to address the uncertainty that exists in implementing the 
hook and bait modifications that have proven to be effective in the 
Atlantic longline fishery but are, as yet, untested in the Pacific. 
Although the one week advance notice of closure of the fishery could 
result in additional sea turtles being taken, the number is expected to 
be very small. The delay in effectiveness offered by the advance notice 
provision is necessary to give permit holders and vessel operators time 
to cope the logistical aspects of the closure. Providing advance, 
``yellow-light'' warnings based on vessel observer reports is an 
alternative approach, but the interaction limits are so small that NMFS 
has determined it to be impractical. Should any of the incidental take 
limits, including interactions or mortalities, be exceeded, NMFS will 
reinitiate consultation under section 7 of the ESA, at which point the 
need for additional measures would be considered.

[[Page 17336]]

    Comment 36: One commenter recommends a similar analysis and 
mechanism (``yellow-light concept'' and hard limit trigger) for closure 
of the tuna fishery and supports the use of circle hooks and squid bait 
in the tuna fishery.
    Response: This final rule does not include a hard limit for the 
deep-set fishery because there is a higher level of confidence in the 
reliability of the projected take levels. The tuna component of the 
fishery has its own incidental take statement and if those limits are 
exceeded, NMFS will reinitiate consultation under section 7 of the ESA. 
Additionally, experimentation with alternative gear, bait, and fishing 
tactics in the tuna component of the fishery could be undertaken within 
the existing management framework, and such experimentation is 
recommended under the 2004 biological opinion.
    Comment 37: The commenter stated that controls on general longline 
permitted vessels and those operating out of American Samoa should be 
included in the rule and analyzed in the DSEIS.
    Response: The potential impacts of the American Samoa-based 
longline fleet are discussed in section 10.5 of the DSEIS. A program to 
limit access in that fishery has already been adopted by the Council 
for recommendation to NMFS. NMFS is in the process of designing an 
observer program for the American Samoa-based longline fishery, which 
is consistent with a condition in the 2004 biological opinion's 
incidental take statement that such a program be established where 
feasible. The program would improve the information base for the 
fishery. The Council plans to consider further measures for the 
American Samoa-based longline fishery at the Council's March, 2004, 
meeting.
    Comment 38: One commenter stated that the Atlantic research results 
do not ``minimize'' turtle bycatch and that more work needs to be done. 
The comment also stated the limit of 2,120 shallow sets per year for 
the action is too much, although it expressed support for additional 
work in the Atlantic and Azores with larger hooks and urged NMFS to 
promote the use of promising gear by foreign fleets.
    Response: NMFS allows that further reductions in turtle takes and 
mortalities may be achieved with expanded experimentation on gear and 
fishing tactics and agrees that more work needs to be done. However, 
NMFS supports the proposed set limit. According to the 2004 biological 
opinion, the proposed number of sets is not likely to jeopardize the 
continued existence of any turtle species. Adaptation of the Atlantic 
results to the Pacific is necessary because of the different 
oceanographic conditions and fishing practices, and will be essential 
in transferring new methods to foreign fleets in the Pacific. It is 
likely that work in both the Atlantic and Pacific will contribute to 
reductions of turtle takes. The 2004 biological opinion includes 
several conservation recommendations aimed at increasing the export of 
knowledge of techniques and gear to reduce turtle interactions and 
mortalities.
    Comment 39: A comment states that NMFS should carefully review the 
bycatch of other non-target species, such as seabirds and sharks. An 
expressed concern is historical observer data showing seasonal 
variations in seabird interactions, with peaks in the April-June 
period.
    Response: The Magnuson-Stevens Act requires that FMPs establish a 
standardized reporting methodology for assessing bycatch, reduce 
bycatch to the extent practicable, and reduce mortality of unavoidable 
bycatch to the extent practicable. (Seabirds are not ``bycatch'' as 
defined in the Magnuson-Stevens Act but seabird interactions are 
nonetheless monitored and managed as bycatch is.) The Magnuson-Stevens 
Act does not require measures to reduce bycatch that are not 
practicable. In accordance with the Magnuson-Stevens Act, NMFS is in 
the process of establishing a bycatch protocol that describes common 
elements of a standardized bycatch reporting methodology for fisheries 
under the jurisdiction of the agency. Consistent with this developing 
protocol, the FMP for the western Pacific pelagic fisheries includes a 
review of bycatch in the fisheries and evaluates the potential and 
practicability of alternative approaches to reduce bycatch and bycatch 
mortality, as required. Existing regulations for the longline fisheries 
provide for bycatch data, as well as seabird data, to be collected 
through mandatory vessel logbooks. Data on bycatch and protected 
species interactions are also collected through a vessel observer 
program in the Hawaii-based longline fishery, and a similar program is 
being planned for the American Samoa-based longline fishery. NMFS will 
develop observer coverage levels and sampling designs following the 
bycatch protocol.
    A new ESA section 7 consultation on the short-tailed albatross is 
being conducted. As indicated in the response to Comment 7, this final 
rule does not affect the existing requirements to employ seabird 
mitigation measures, and NMFS and the Council are considering 
additional seabird avoidance measures, some of which hold promise for 
virtually eliminating seabird interactions in pelagic longline 
fisheries. It should be noted that the April-June peak observed in 
seabird interactions coincided to a large extent with the April-May 
period of the southern area closure, which had the effect of pushing 
longline effort closer to the major seabird breeding colonies in the 
Northwestern Hawaiian Islands.
    Comment 40: One commenter stated that the proposed regulatory 
amendment and its implementing regulations reflect dramatic progress 
toward a collaborative, science-based, integrated and lawful regulatory 
regime.
    Response: Comment acknowledged.
    Comment 41: One commenter stated that narrow definitions and design 
criteria for dehooking devices are likely to cramp NMFS's discretion in 
ways that may be detrimental to the fishery and to conservation 
interests.
    Response: The design standards are based on devices and designs 
developed and used beneficially in research conducted in Atlantic 
research over the last 3 years. They are minimum design standards and 
in fact allow a substantial amount of flexibility in construction and 
design. If additional experience or research indicates the design 
standards should be modified, NMFS may adjust the regulations.
    Comment 42: A number of commenters stated that they oppose renewed 
swordfish fishing east of 150[deg] W. long.
    Response: This final rule does not distinguish between waters east 
and west of 150[deg] W long., as the best available scientific 
information does not warrant such an action. Vessels operating under 
Hawaii longline limited access permits will be allowed to target 
swordfish (make shallow longline sets) north of the equator at any 
longitude. Issues involving distinctions by longitude arose in the 
development of regulations for the West Coast-based longline fishery in 
the Pacific Fishery Management Council's Highly Migratory Species (HMS) 
Fishery Management Plan (FMP) for vessels operating primarily out of 
California and the biological opinion for that action. The Pacific 
Council reviewed the available evidence and concluded that there was 
insufficient evidence that turtle takes were significantly higher east 
150[deg] W long. A recent study of this issue (Carretta, 2003) 
concluded that, while there is some evidence that shallow sets east of 
150[deg] W long. have higher interaction rates with loggerhead and 
leatherback sea turtles, the difference is not statistically 
significant at the 95

[[Page 17337]]

percent level of confidence. Conversely, the interaction rate of 
shallow sets with olive ridley sea turtles was significantly higher 
west of 150[deg] W long. Regulation of the fishery conducted under the 
HMS FMP is independent of this proposed action for the Western Pacific. 
The HMS fishery will be prohibited from making shallow-sets west of 
150[deg] W long. by the FMP and its implementing regulations and from 
making shallow sets east of 150[deg] W long. by rules implemented under 
the ESA (for the latter, see final rule published March 11, 2004, at 69 
FR 11540). The HMS FMP and its associated biological opinion assumed 
that any shallow-set longlining would be done using the same techniques 
historically used in both the Hawaii-based and the West Coast-based 
fisheries, specifically, J-hooks and squid bait. The action here 
requires the use of circle hooks and mackerel-type bait for Hawaii-
based vessels making shallow sets north of the equator, hook and bait 
types that have been shown in the Atlantic to significantly reduce 
interactions with loggerhead and leatherback turtles. Waters east of 
150[deg] W long. have historically represented a relatively minor 
portion of the Hawaii-based longline effort, and that is expected to be 
the case under this final rule.
    Comment 43: Several commenters stated that keeping the area east of 
150[deg] W long. closed to longline fishing for swordfish is the only 
measure that will help prevent extinction of the leatherback.
    Response: There are a number of measures that will help reduce the 
risk of extinction of the leatherback including elimination or 
reduction of direct harvesting, nesting beach management, and egg 
protection. Additionally, the best available scientific information 
does not warrant a longitudinal separation of regulations for the 
Hawaii-based longline fleet. In either case, there is relatively little 
fishing east of 150[deg] W long. by this fleet. Also, the 2004 
biological opinion concludes that the fishery, as managed under this 
final rule (i.e., without longitudinal distinctions), is not likely to 
jeopardize the continued existence of any sea turtle species.
    Comment 44: Several commenters stated that since the area east of 
150[deg] W long. was closed to shallow sets, the number of sea turtles 
killed has dropped significantly.
    Response: It is true that shallow-set longlining generally has 
higher turtle interaction rates than does deep-set longlining, and 
prohibiting shallow-setting would likely result in fewer sea turtle 
interactions than an open swordfish fishery. Nevertheless, NMFS has 
determined that the number of interactions that is anticipated to occur 
under this final rule is acceptably small. It is important to note that 
the Hawaii-based longline fleet exerts approximately 3 percent of all 
Pacific pelagic longline effort. When U.S. vessels are restricted from 
fishing for swordfish, it is possible that foreign fleets will fill all 
or part of the void in supply, and since those fleets are likely to 
have greater interaction and mortality rates per unit catch than the 
Hawaii-based fleet, the result could be more interactions Pacific-wide. 
This final rule includes a model swordfish fishery employing methods 
shown in the Atlantic (circle hooks and mackerel-type bait) to 
dramatically reduce turtle interactions and at the same time, increase 
swordfish catches. If these techniques prove as effective in the 
Pacific as they have been found to be in the Atlantic, foreign fleets 
may adopt these methods to increase their swordfish landings while also 
reducing their turtle interaction rates. The long-term effects of 
exporting these techniques may far outweigh any short-term gains 
resulting from closing areas to Hawaii-based vessels.
    Comment 45: One commenter asked why the data collected to implement 
the Disaster Economic Assistance Program (DEAP) for the Hawaii-based 
longline fishery was not used as the basis for developing an allocation 
based on historical participation in the swordfish fishery.
    Response: Although the data from the DEAP is available and could 
have been used to determine a minimum baseline for participation in the 
historical swordfish fishery, the Council recommended that the model 
swordfish fishery be open to all Hawaii-based longline permit holders. 
The main rationale for that recommendation is that limiting 
participation to permit holders with historical participation in the 
swordfish component of the fishery would be an unjustified removal of a 
previous privilege and economic option from vessels that historically 
targeted tuna.
    Comment 46: One commenter stated that the limits on the numbers of 
loggerhead or leatherback turtle interactions 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 
economic performance and safety.
    Response: These effects could indeed occur. Their likelihood and 
magnitude are dependent on, among other factors, the probability of 
either of the interaction limits being reached in a given year. NMFS 
has determined that the probability is not excessively great and that 
these potential effects are likely to be relatively minor. However, 
like several other measures in this final rule, this measure is novel 
in the western Pacific pelagic fisheries and its effects are not 
certain. NMFS intends to continue to monitor the biological and 
socioeconomic aspects of the fishery such that these and other effects, 
both positive and negative, can be detected and measured, and if 
needed, appropriate management responses can be taken.
    Comment 47: One commenter expressed support for the proposed rule 
and its implementing management measures. The commenter also stated 
that the reopening of the Hawaii-based swordfish fishery will send a 
positive conservation message globally.
    Response: Comment acknowledged.
    Comment 48: One commenter stated the agency should be doing all it 
can to protect what little there is left of the nation's precious 
natural heritage.
    Response: The model swordfish fishery, if it is as successful in 
the Pacific as it has been in the Atlantic, is expected to have 
positive effects on international longline fishing practices with 
respects to effects on sea turtle populations, which might be 
considered to be part of the natural heritage of the U.S.
    Comment 49: One commenter stated that leatherback turtles can 
withstand no additional human captures or kills and are likely to be 
killed at an increased rate if shallow sets are allowed.
    Response: The 2004 biological opinion concluded that the action is 
not likely to jeopardize the continued existence of any turtle species. 
The model swordfish fishery, if it is as successful in the Pacific as 
it has been in the Atlantic, is expected to have positive effects on 
international longline fishing practices with respect to effects on 
leatherback and loggerhead turtle populations. Management alternatives 
that would eliminate or sharply curtail the model swordfish fishery 
would provide little incentive for foreign fishing vessels to change 
their fishing patterns.
    Comment 50: One commenter stated that it is unknown whether turtles 
are able to survive the injury and trauma of being captured and then 
released.
    Response: Post-release mortality is an area of active research and 
quite a bit is known. In 2001, NMFS established a policy and criteria 
for estimating

[[Page 17338]]

survival and mortality rates following interactions with longline gear. 
In 2004 (since publication of the DSEIS and described in new section 
14.0 of the Final SEIS for this action), these criteria were reviewed 
and modified on the basis of new information. Six categories of 
interaction and three categories of release were defined to give a 
matrix of post-release mortality estimates for both leatherback and 
hard shell turtles. These percentages currently are used in estimating 
post-release mortalities. It is likely that these criteria will 
continue to be refined as new data become available.
    Comment 51: One commenter stated that the indiscriminate use of 
long soak times, shallow depths, and light sticks poses a terrible 
threat to our oceans. It simply is too wasteful a fishing technique.
    Response: The action includes a variety of measures to regulate and 
monitor the Hawaii-based domestic longline fishery. It includes a model 
swordfish fishery employing methods shown in the Atlantic (circle hooks 
and mackerel-type bait) to dramatically reduce turtle interactions and 
at the same time, increase swordfish catches. Swordfish-directed 
longlining results in bycatch of other fish species, and although no 
such species have been identified as being in poor condition as a 
result of swordfish-directed longlining, the Council and NMFS are 
continuing to explore strategies for reducing bycatch in longline 
fisheries. Discarding of light sticks is prohibited under U.S. law and 
international convention.
    Comment 52: One commenter stated that harpooning would be 
preferable to longline fishing in terms of economics, jobs, product 
quality and ecosystem impact.
    Response: Harpooning is not prohibited under the FMP. There are 
only certain places where the oceanographic conditions favor a 
concentration of swordfish at the sea surface where they can be 
harpooned. These conditions do not exist in the area fished by the 
Hawaii-based fleet, and this method is impractical for them to use.
    Comment 53: One commenter expressed the desire that the agency stop 
giving commercial fishermen optimum yields, which means no fish left in 
our oceans for our children's world.
    Response: National Standard 1 of the Magnuson-Stevens Act requires 
NMFS to manage fisheries for ``optimum yield'' (16 U.S.C. Sec.  
1851(a)(1)), which is the yield that provides the greatest overall 
benefit to the nation, with particular reference to food production and 
recreational opportunities. Optimum yield is based on maximum 
sustainable yield (MSY) as modified by economic, social and ecological 
factors. MSY is a sustainable management benchmark with respect to fish 
stocks and OY further reduces that benchmark to account for other 
relevant factors, including interactions with protected species.
    Comment 54: One commenter stated that all longlining should be 
eliminated because swordfish are endangered.
    Response: Swordfish in the Pacific are not overfished or listed as 
endangered or threatened under the ESA, and the stock historically 
fished by the Hawaii-based fishery appears to be in good condition. As 
reviewed in section 9.1.4.6 of the DSEIS, ``The stock assessment for 
North Pacific swordfish by Kleiber and Yokawa (2002) suggests that the 
population in recent years is well above 50% of the unexploited 
biomass, implying that swordfish are not over-exploited and relatively 
stable at current levels of longline fishing effort in the North 
Pacific.''
    Comment 55: One commenter opposed the elimination of the 
requirement that operators of general longline vessels take an annual 
protected species course.
    Response: The removal of this requirement will occur as a result of 
the Court Order vacating the regulations published June 12, 2002, that 
provided protective measures for sea turtles. At its March 2004 
meeting, the Council is expected to consider whether this requirement 
should be reimplemented.
    Comment 56: A commenter expressed concern over the composition of 
the Council, asserting that a strong commercial fishing presence on the 
Council may improperly influence the biological opinions produced.
    Response: The Western Pacific Fishery Management Council has 13 
voting and 3 non-voting members. Half of the members are appointed by 
the U.S. Secretary of Commerce to represent fishing and related 
community interests in the region. The other Council members are 
designated state, territorial and federal officials with fishery 
management responsibilities. Only one of the four Hawaii members of the 
Council represents commercial fishing interests. Biological opinions 
are issued by NMFS' Office of Protected Resources, not the Council or 
its staff.
    Comment 57: A commenter expressed concern that results from the 
Atlantic may not work in the Pacific, maybe because there is too little 
food and too few turtles in the Atlantic.
    Response: In the Atlantic experiments, the observed reductions in 
turtle takes were quite substantial for loggerheads and leatherbacks 
and it is hoped that they will be similarly successful in the Pacific. 
Recognizing that the efficacy of the mitigative hook and bait types has 
yet to be tested in the Pacific, this final rule includes annual limits 
on interactions with leatherback and loggerhead turtles in the shallow-
set component of the fishery, which will ensure that few interactions 
occur regardless of the success of the hook and bait requirements. 
Compliance with the limits will be facilitated by a high level of 
observer coverage in that component. NMFS intends to have 100-percent 
vessel observer coverage in the shallow-set component, as mandated in 
the 2004 biological opinion.
    Comment 58: A commenter suggested that all quotas be cut by 50 
percent this year and 10 percent each subsequent year.
    Response: Because the North Pacific swordfish stock is not 
overfished and appears to be in good condition, there are no quotas on 
swordfish landings. This final rule will limit the annual number of 
shallow (swordfish-directed) sets to about one half the annual average 
during the 1994-1999 period and strictly limit the number of 
leatherback and loggerhead turtles incidentally caught to avoid 
jeopardizing turtle species. The limit on shallow sets will also serve 
to limit the catches of other species.
    Comment 59: One commenter suggested that any fishing violator lose 
his vessel.
    Response: The appropriate vehicles for establishing penalties are 
the enabling statute and penalty schedules issued by the NOAA Office of 
Law Enforcement and NOAA General Counsel.
    Comment 60: A commenter stated they would like to see marine 
sanctuaries established where nobody can fish.
    Response: Marine sanctuaries, including ``no take'' areas, are 
being established throughout the Western Pacific by local and federal 
agencies. The Council has established such areas through its Coral Reef 
Ecosystems Fishery Management Plan, and is considering implementing 
more such areas for other fisheries. Establishing no-take marine 
sanctuaries in international waters is not feasible, as the United 
States may not unilaterally prohibit foreign fishing on the high seas.
    Comment 61: One commenter questioned the motivation for the action, 
asking whether the Council

[[Page 17339]]

wants to fish out the area and decimate the stocks.
    Response: This final rule might result in an increase in the 
harvest of swordfish, but swordfish in the Pacific are not overfished, 
as described above. The Council and NMFS are charged with protecting 
fishery resources while maintaining opportunities for domestic fishing 
at sustainable levels of effort and yield and avoiding adverse impacts 
to protected species. Towards this end, there is a limited access 
program in place for the Hawaii-based longline fleet, and this final 
rule will implement effort limits for the shallow-set sector of this 
fishery. The effect of both is to limit the catch of fish.
    Comment 62: A commenter expressed the view that even a 
``possibility'' that greater effort per set could increase relative to 
the no action scenario would make any plan allowing such increase too 
risky or wrong.
    Response: There are physical constraints to how many hooks can be 
set in a day by a shallow-setting longline vessel. Further, the limits 
on interactions with leatherback and loggerhead turtles will ensure 
that interactions are limited regardless of the degree to which 
effective effort per set might increase as a result of this final rule.
    Comment 63: A commenter stated that assessing for multiple years is 
worrisome, as a plan could be set in stone and, meanwhile, every fish 
in the ocean could have disappeared.
    Response: The fishery management plan and implementing regulations 
for this fishery are reviewed annually. Due to the considerable inter-
annual variability in climatic and oceanographic conditions across the 
western Pacific, results obtained in a single year may not represent 
typical conditions. Valid, representative results are necessary to 
formulate appropriate long-term management measures, and this typically 
requires data from more than a single year. The status of each stock is 
regularly assessed and adjustments to the respective management regimes 
are required if a stock is found to be overfished.
    Comment 64: A commenter stated that more time, rather than an 
abbreviated comment period, was needed.
    Response: The DSEIS for this action had a 30-day comment period, 
approved by the Environmental Protection Agency, in order to ensure 
that protective measures for sea turtles are implemented by April 1, 
2004, the date that existing protective measures will be eliminated by 
Court Order.
    Comment 65: A business should not hold more than one permit.
    Response: This rule does not affect the existing requirements and 
restrictions related to fishing vessel permits and it does not affect 
the number of permits that may be held by a single business. The 
comment is acknowledged, but NMFS does not find reason at this time to 
restrict the number of permits that may be held by a single business.
    Comment 66: All the catch of all vessels should be posted on the 
internet so the public can see what is being done to a resource that 
belongs to all Americans.
    Response: NMFS and the Council provide aggregated catch information 
in the form of quarterly and annual reports that are available on their 
websites. (www.nmfs.hawaii.edu and www.wpcouncil.org).
    Comment 67: One commenter stated the limit on shallow setting 
certificates should be 500, not 2,120.
    Response: NMFS considered a range of limits on shallow sets from 0 
to 3,179. Several considerations factored into the choice of the number 
of sets for the preferred alternative, including potential effects on 
turtle populations, adequacy of resultant data to document the effects 
of the model swordfish fishery, the costs of outfitting a vessel for 
this type of fishing, and the potential annual returns for 
participants. One of the objectives of the FMP is to achieve optimum 
yield. The preferred alternative was selected to provide the greatest 
economic benefits at the least cost, including the non-market costs 
associated with sea turtle interactions.
    Comment 68: Several commenters stated the rules should not just 
restrict American fishermen, but level the playing field and restrict 
foreign longline fleets from fishing as well.
    Response: The United States government cannot manage/regulate 
foreign fishing effort on the high seas.
    Comment 69: One commenter stated that sea turtles are essential to 
the lure and lore of the western Pacific cultures and communities.
    Response: NMFS recognizes the importance of sea turtles to the 
cultures and communities of the western Pacific. One objective of this 
rule is to avoid jeopardizing the continued existence of sea turtles. 
The analyses conducted in association with the rule, including those in 
the 2004 biological opinion, indicate that it is not likely to 
jeopardize the continued existence of any sea turtle species.
    Comment 70: One commenter expressed views that trading, selling or 
giving shares should not be allowed.
    Response: Depending on the number of interested permit holders, 
individual permit holders may receive so few shallow-set certificates 
that prohibiting transfers of these certificates could have the effect 
of making participation uneconomical due to the start-up costs. It 
would also result in unused effort, meaning the FMP objective of 
attaining optimum yield would not be furthered nor would the efficacy 
of the mitigative hook and bait types be tested and demonstrated to 
foreign fishing fleets.
    Comment 71: One commenter raised concerns about blue marlin, 
indicating that it may be nearly fully exploited so more study is 
required before opening up a fishery that could further diminish the 
stock.
    Response: In 1997, the Hawaii-based longline fishery was estimated 
to have caught 3.7 percent of the Pacific-wide catch of blue marlin 
(Boggs et al., 2000). That includes both deep and shallow set catches. 
Limitations inherent in this action would allow Hawaii-based shallow-
set effort, with its greater rate of blue marlin catch as compared to 
the deep-set fishery, to 50 percent of the average annual effort seen 
during the 1994-1999 period.
    Comment 72: A commenter suggested reducing the length of the hook 
leader to reduce hooking based on the fact leatherbacks are typically 
flipper hooked.
    Response: Encounters by leatherbacks with longline gear are not 
completely random, but may to some extent be related to the turtles 
being attracted to the gear. Experiments in the Atlantic showed that 
hooks nearer to floats have a higher incidence of turtle interactions, 
however this has not been consistently observed for Pacific turtles. It 
would be premature to regulate this parameter without a better 
understanding of why leatherbacks are hooked.

Changes From the Proposed Rule

    The final rule includes, in Sec.  660.12, definitions of ``circle 
hook'' and ``offset circle hook'' in order to facilitate compliance 
with the requirement, in Sec.  660.33(f), for Hawaii-based longline 
vessels to use offset circle hooks when making shallow longline sets 
north of the equator. For the same reason, Sec.  660.33(f) also 
establishes minimum dimensions for an ``offset circle hook sized 18/0 
or larger,'' and specifies how the required 10[deg] offset in the 
required circle hooks is measured.
    The final rule includes, in Sec.  660.32(a)(4), more detailed 
specifications of the dehookers that must be carried and used by 
Hawaii-based longline vessels to disengage hooked and entangled sea 
turtles. The dehooker specifications, expressed through minimum design 
and

[[Page 17340]]

performance standards, are based on the dehookers used in the recent 
research in the Atlantic on potential sea turtle mitigation measures. 
NMFS will provide vessel operators with further guidance on how to use 
the dehookers through various outreach activities, including the annual 
protected species workshops that owners and operators of Hawaii-based 
longline vessels are required to attend. The final rule also includes 
slight revisions to Sec.  660.32(b) to specify that if a sea turtle is 
too large or hooked or entangled in a manner as to preclude safe 
boarding without causing further damage/injury to the turtle, the line 
clippers and dehookers must be used to cut and remove as much of the 
line as possible prior to releasing the turtle. In Table 1 is a list of 
the required equipment and sample models that meet the requirements.
BILLING CODE 3510-22-S

[[Page 17341]]

[GRAPHIC] [TIFF OMITTED] TR02AP04.005


[[Page 17342]]


    Figures 1, 2, 3, and 4 are diagrams of a sample hook removal device 
for a long-handled dehooker for ingested hooks, a sample long-handled 
dehooker for external hooks, a sample short-handled dehooker for 
ingested hooks, and a sample short-handled dehooker for external hooks, 
respectively.
[GRAPHIC] [TIFF OMITTED] TR02AP04.006


[[Page 17343]]


[GRAPHIC] [TIFF OMITTED] TR02AP04.007


[[Page 17344]]


[GRAPHIC] [TIFF OMITTED] TR02AP04.008


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[GRAPHIC] [TIFF OMITTED] TR02AP04.009

BILLING CODE 3510-22-C

[[Page 17346]]

    The final rule clarifies, in Sec.  660.33(a)(2), that each holder 
of a Hawaii longline limited access permit that expresses interest to 
NMFS in receiving shallow-set certificates for the upcoming year would 
receive not one share of the shallow-set certificates, but one share 
for each permit held.
    The final rule includes, in Sec.  660.33(b)(1), annual limits on 
the numbers of interactions in the shallow-set component of the Hawaii-
based fishery, set at 16 and 17 for leatherback and loggerhead sea 
turtles, respectively. The proposed rule indicated that the limits 
would be set equal to the annual estimated incidental takes for the 
respective species in the shallow-set 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 ESA. Because a biological opinion with an incidental 
take statement has since been issued (February 23, 2004), the expected 
annual numbers of captures in the incidental take statement of that 
opinion are used to establish these interaction limits. If the numbers 
in the incidental take statement are modified or if a new biological 
opinion is issued, new rule-making will be undertaken to change the 
interaction limits accordingly.
    The final rule includes, in Sec.  660.33(g), a definition of 
``mackerel-type bait,'' based on form and coloration, in order to 
facilitate compliance with the requirement in that paragraph for 
Hawaii-based longline vessels to use mackerel-type bait when making 
shallow longline sets north of the equator.
    The final rule includes, in Sec.  660.33(j), an explicit 
prohibition against Hawaii-based longline vessels possessing or landing 
more than 10 swordfish from trips for which the pre-trip notification 
to NMFS under Sec.  660.23(a) indicated the trip type to be deep-
setting. This restriction will facilitate compliance with the limits 
and restrictions related to shallow-setting (the 10-swordfish threshold 
is included, in both the proposed and final rules, as one of the 
criteria that distinguishes the definitions of ``deep-setting'' and 
``shallow-setting'').

Classification

    Under 5 U.S.C. 553(d)(3), NMFS finds good cause to waive the 30-day 
delay in effectiveness of certain measures in this final rule, finding 
such delay to be contrary to public interest because Court Orders 
(described above) will, on April 1, 2004, remove protections to sea 
turtles. The implementation of the turtle conservation measures in this 
final rule are necessary to ensure that the fishery is conducted in 
compliance with the ESA after the removal of existing protections on 
April 1, 2004. If such measures are not implemented on or after April 
1, 2004, then sea turtles will not be adequately protected from adverse 
impacts caused by interaction with longline vessels. NMFS was unable to 
issue this final rule sooner because of the time needed to complete the 
rule-making process, including the requirements under NEPA to invite 
and consider input from the public, and the brief time available since 
the Court Orders. Certain measures related to shallow-setting by 
Hawaii-based vessels do not need to be effective immediately because 
shallow-setting will not be allowable until the shallow-set 
certificates for 2004 are distributed, which will not occur before May 
1, 2004. Accordingly, this final rule is effective upon publication in 
the Federal Register, except for the new requirements and prohibitions 
regarding carrying and using dehookers (Sec.  660.22(ii) and Sec.  
660.32(a)), the amended requirements and prohibitions regarding sea 
turtle handling requirements (Sec.  660.22(ll) and Sec.  660.32(b)), 
the new requirements and prohibitions regarding the use of specific 
hook types (Sec.  660.22(nn) and Sec.  660.33(f)), and the new 
requirements and prohibitions regarding the use of specific bait types 
(Sec.  660.22(oo) and Sec.  660.33(g)), which are effective 30 days 
after the date of publication in the Federal Register.
    The Council and NMFS prepared an FSEIS for this regulatory 
amendment. EPA published a notice of availability of the FSEIS on March 
19, 2004 at 69 FR 13036. This final rule is issued after an abbreviated 
comment period for the FSEIS under alternative procedures approved by 
the Council on Environmental Quality. The FSEIS focuses on the expected 
effects of the action on sea turtle species that interact with the 
western Pacific pelagic longline fisheries. The annual numbers 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 are as follows: leatherback, 112; loggerhead, 418; green, 
40; and olive ridley, 146. Under this final 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 annual numbers of sea turtle mortalities, 
which are subsets of the annual numbers of interactions, are more 
uncertain than the projected interactions because of the difficulty in 
estimating the numbers of turtles that ultimately die as a result of 
injuries incurred in interactions with fishing gear.
    This final rule has been determined to be significant for purposes 
of Executive Order 12866.
    The Council prepared a Final Regulatory Flexibility Analysis (FRFA) 
that describes the economic impact this final rule is expected to have 
on small entities. The Initial Regulatory Flexibility Analysis (IRFA) 
was summarized in the proposed rule published January 28, 2004 (69 FR 
4098). 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 copy of the FRFA 
is available from NMFS (see ADDRESSES). A summary of the FRFA follows:

Number of Affected Small Entities

    This final rule applies to all holders of Hawaii longline limited 
access permits and all holders of western Pacific 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, about 48 
of which were active. In 2003 all but two holders of longline general 
permits were based in, or operated out of, American Samoa. The 
remaining two, neither of which was active in 2003, were based in the 
Mariana Islands.
    In a few cases multiple permits are held by a single business, so 
the number

[[Page 17347]]

of businesses to whom this final rule will 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 this final rule will 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 this final 
rule.

Alternatives to the Rule

    A number of alternatives to this final 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 preferred alternative eliminates 
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 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 preferred alternative limits 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 five 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 on effort (sets) is reached 
(provided the limits on sea turtle interactions are not reached first) 
(the preferred alternative divides and distributes the effort 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 it would exclude those participants who 
have historically targeted tuna but who were not previously barred from 
participating in the swordfish component of the fishery. The fleet-wide 
effort 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 sea turtle interaction limit and an 
interaction limit for each species for which there is an Incidental 
Take Statement issued under the ESA (the preferred alternative will 
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 are 16 and 17, 
respectively, equal to the annual number of turtles expected to be 
captured 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 sea 
turtle interaction 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.

Reasons for Selecting the Preferred Alternative

    The preferred alternative was selected primarily in terms of how 
well it would be expected to achieve the objectives of the action, 
particularly achieving optimum yield and promoting domestic harvest and 
domestic fishery values while avoiding the likelihood of jeopardizing 
the continued existence of any endangered or threatened species. 
Because the target fish stocks in the Hawaii-based longline fishery are 
not overfished and greater fishing effort by the U.S. fleet would 
generally result in greater economic returns and greater benefit to the 
nation, the essence of the selection was one of balancing the 
beneficial effects of greater fishing effort against its negative 
impacts to ESA-listed sea turtle species, and at the same time, 
selecting sea turtle and seabird mitigation measures that have the 
promise of minimizing adverse impacts to those species without unduly 
comprising fishing efficiency. Another important consideration was the 
fairness of the scheme used to allocate the available shallow-set 
effort among fishery participants. The alternative that was determined 
to best meet these criteria was the one that would: eliminate the 
April-May longline closed area, limit shallow-set longline effort in 
the Hawaii-based longline fishery to

[[Page 17348]]

2,120 sets per year, distribute that annual limit in equal portions to 
all interested permit holders, establish annual limits on the numbers 
of interactions with leatherback and loggerhead sea turtles in the 
shallow-set component of the fishery, require that mitigative hook and 
bait types be used in the shallow-set component of the fishery, require 
that dehookers be carried and used to disengage hooked and entangled 
sea turtles, and require that longline gear be deployed during the 
nighttime when shallow-setting north of 23[deg] N. latitude.

Effects of the Rule on Small Entities

    This final 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 will 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 will 
likely be very slightly offset by the need to acquire and use specified 
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 will 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 
will 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 when shallow-
setting north of the equator.
    Holders of longline general permits will 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.

Public Comments on Initial Regulatory Flexibility Analysis

    NMFS received and considered a number of comments on the IRFA, and 
responds as follows:
    Comment 1: There is a lack of transparency in the process by which 
the alternative allocation methods were developed and evaluated. The 
economic and social impact analysis in the IRFA, in combination with 
those in the DSEIS and Regulatory Impact Review (RIR), is sketchy and 
sometimes contradictory.
    Response: The participation options were discussed, and a 
preliminarily preferred option selected, at the Council's 121st 
meeting. In trying to determine the fairest alternative, the 
preferences of those directly affected (the holders of Hawaii longline 
limited access permits) were of primary importance, as explained 
further in the response to Comment 5. The economic and social impact 
analyses in the FRFA, in combination with those in the FSEIS and the 
RIR, have been expanded with respect to the expected impacts of the 
alternatives on fishery participants. Contradictions among those 
analyses have reconciled, particularly with respect to the relative 
advantages and disadvantages of the participation options (see also 
responses to Comments 2 and 4).
    Comment 2: The IRFA, in combination with the DSEIS, is unclear if 
the prospect of a decrease in fishing vessel safety is a likely one and 
therefore a valid reason for rejecting Participation Option 1 (no 
allocation of shallow-set effort shares open to all).
    Response: Discussions of the impacts of the participation options 
have been expanded and contradictory statements in the IRFA and DSEIS 
have been reconciled in the FRFA and FSEIS. As indicated in the FRFA, 
one consideration in choosing among the participation options was that 
Participation Option 1 could lead to safety problems because there 
would be an incentive to fish quickly, before the effort limit is 
reached, and that incentive could lead some fishermen to choose to fish 
in relatively hazardous weather or sea conditions.
    Comment 3: The contention that Participation Option 1 may result in 
market gluts and shortages is not substantiated, and the information 
provided seems to indicate otherwise.
    Response: Although Hawaii-caught swordfish has been a small part of 
the world market, interruptions or fluctuating availability of any 
product make the necessary establishment of market channels difficult. 
This is especially true for producers in relatively remote areas such 
as Hawaii who do not have easy access to the world market. These 
statements have been qualified to indicate that these results could 
happen, not that they necessarily would.
    Comment 4: The DSEIS states that Participation Option 1 would be 
relatively easy to implement, but the IRFA states it would be difficult 
to monitor and administer.
    Response: The discussions of the impacts of the participation 
options have been expanded and contradictory statements in the DSEIS 
and the IRFA have been reconciled in the FSEIS and FRFA. As indicated 
in the FRFA, one consideration in choosing among the participation 
options was that Participation Option 1 would require a system for 
monitoring fishing effort and a mechanism for closing the fishery once 
the effort limit is reached, both of which would be difficult to 
implement.
    Comment 5: The DSEIS states that Participation Option 2 (allocating 
available shallow-set effort according to individual historical 
participation in the swordfish component of the fishery) may be 
contentious, but there is no mention that the preferred alternative, 
Participation Option 5 (allocate available shallow-set effort equally 
among all interested permit holders), may also be contentious. The 
potential for controversy and dissension should be examined in a 
balanced, objective, and comprehensive manner. Who may receive windfall 
gains should be carefully considered. Further, one reason Participation 
Option 2 was rejected is that it would exclude those who target tuna 
but actively participated in the development of this measure. The fact 
that someone who has engaged in the process of developing management 
measures is not rewarded does not seem to be a justifiable reason for 
rejecting an alternative.
    Response: NMFS acknowledges that Participation Option 5, the 
preferred option, may indeed be contentious among the affected 
fishermen, as may the other options. As with any allocation scheme, it 
may not be

[[Page 17349]]

possible to formulate a scheme that is considered fair by all affected 
parties. In assessing the relative fairness of the allocation options, 
NMFS gave considerable weight to the views of the affected fishermen, 
and in seeking those views NMFS relied strongly on the expressed views 
of the Hawaii Longline Association (HLA), of which most permit holders 
are members. NMFS recognizes that not all permit holders are 
necessarily represented by HLA, and like any organization, the views of 
the organization as a whole do not necessarily reflect those of all its 
members. Nevertheless, NMFS has found that HLA's expressed support of 
Participation Option 5, together with an objective assessment of the 
likely effects of the allocation options and the public comments 
received on the DSEIS, IRFA, and proposed rule, indicate that the 
preferred allocation alternative is reasonably fair and is unlikely to 
result in excessive windfall gains to some fishermen at the expense of 
others. With respect to the reasons for rejecting Participation Option 
2, the FRFA explains that restricting the allocation of available 
shallow-set effort to those with historical experience in the swordfish 
fishery would be an unjustified removal of a previous privilege and 
economic option from vessels that historically targeted tuna.
    Comment 6: Administrative expediency and the short time line should 
not be used to justify rejection of Participation Option 2, especially 
if there are opportunities for extending the deadline or implementing 
an interim rule until a sound analysis of allocation alternatives can 
be performed.
    Response: Administrative efficiency was one consideration but the 
refinement of the Council's preliminarily preferred option was also 
based on input from the interested parties (see response to Comment 5).
    Comment 7: One reason given for rejecting Participation Option 2 is 
the inefficiencies that may result if there is no method for 
uninterested permit holders to transfer their effort shares to others. 
It is unclear why the same provision allowing the transfer of effort 
shares used in Participation Option 5 could not be included in 
Participation Option 2.
    Response: Such a provision could have been included in 
Participation Option 2, but that alternative, with or without 
transferable certificates, was determined to be less preferred than 
Participation Option 5 for fairness reasons (see response to Comment 
5).
    Comment 8: The IRFA, in combination with the DSEIS and RIR, should 
include more explicit analysis of the costs and benefits of the 
allocation approach in Participation Option 5, particularly regarding 
the trade-offs between allocating a stable set of privileges with a 
long time horizon in order to promote efficiency and stability in the 
fishery and maintaining administrative flexibility.
    Response: NMFS acknowledges that additional allocation approaches 
are available, including approaches that would allocate more stable and 
durable sets of privileges. The five allocation options considered were 
determined by NMFS to comprise a reasonable range of alternatives in 
the context of the objective of this action, particularly given the 
urgency of establishing protective measures for sea turtles by April 1, 
2004, when the current protective measures are eliminated by Court 
Order. Lacking new measures, sea turtles will not be adequately 
protected from the adverse impacts of fishery interactions. One of the 
new protective measures is the annual fleet-wide limit on fishing 
effort in the shallow-set component of the fishery, which necessitates 
a system for allocating the available effort. With little time 
available to formulate and establish such a system, approaches that 
allocate short-term privileges, as in this rule, are advantageous 
relative to systems with more durable privileges in generally being 
less contentious, and also less irrevocable should adjustments be 
necessary in the future.
    Comment 9: There is no examination of the implications of the 
allocation alternatives in terms of environmental justice, particularly 
with respect to the historical participants in the swordfish component 
of the fishery being predominantly Vietnamese-American.
    Response: As indicated in the response to Comment 5, in trying to 
determine the fairest alternative, the preferences of those most 
affected (the permit holders) were of primary importance. Further, the 
preferred alternative does not dispossess any current permit holder in 
the Hawaii-based longline fishery.
    Comment 10: The preferred participation option may or may not be 
the approach that maximizes net benefits, including potential economic 
effects, environmental effects, public health and safety, distributive 
impacts, and equity. Insufficient information is disclosed for policy 
makers or the public to make that determination.
    Response: As discussed in section 10.1 of the DSEIS and FSEIS, the 
preferred alternative was selected because it was viewed as the most 
equitable one (see response to Comment 5) and the one most likely to 
result in the use of all allowable effort by those most able to 
exercise that effort.
    Comment 11: The economic and social effects of the proposed action 
should be given as much attention in the analyses of the IRFA, DSEIS, 
and RIR as biological and physical effects.
    Response: Efficiency in the fishery was an important factor 
considered in the analysis, as achieving optimum yield is part of the 
objective of the action. As indicated in the response to Comment 5, the 
relative fairness of the alternatives was also given strong 
consideration.
    This final rule contains two collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) pursuant to the Paperwork Reduction Act (PRA). These requirements 
have been approved by the OMB under OMB control numbers 0648-0214 and 
0490. The first requires 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 requires 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 10 minutes per response, and for the second 
requirement, 4 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

[[Page 17350]]

with, a collection of information subject to the requirements of the 
PRA, unless that collection of information displays a currently valid 
OMB control number.
    A formal consultation under section 7 of the Endangered Species Act 
was conducted for the pelagic fisheries of the western Pacific region 
as they would be managed under the Fishery Management Plan for the 
Pelagic Fisheries of the Western Pacific Region, as modified by this 
regulatory amendment. In a biological opinion dated February 23, 2004, 
NMFS determined that fishing activities conducted under the regulatory 
amendment are not likely to jeopardize the continued existence of any 
endangered or threatened species under the jurisdiction of NMFS.

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: March 30, 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 660 is amended as 
follows:

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

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

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

0
2. In Sec.  660.12, the definition of ``Pelagics FMP'' is revised and 
new definitions for ``Circle hook'', ``Deep-set or Deep-setting'', 
``Offset circle hook'', ``Shallow-set or Shallow-setting'', and 
``Shallow-set certificate'', are added alphabetically to read as 
follows:


Sec.  660.12  Definitions.

* * * * *
    Circle hook means a fishing hook with the point turned 
perpendicularly back towards the shank.
* * * * *
    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 fluorescent ``glow bead'', chemical, or electrically 
powered light that is affixed underwater to the longline gear.
* * * * *
    Offset circle hook means a circle hook in which the barbed end of 
the hook is displaced relative to the parallel plane of the eyed-end, 
or shank, of the hook when laid on its side.
* * * * *
    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  [Amended]

0
3. In Sec.  660.21, paragraphs (m) and (n) are removed.

0
4. In Sec.  660.22, paragraphs (hh) and (ii) are added, and paragraphs 
(ff), (gg), (jj), (kk), (ll), (mm), (nn), (oo), (pp), (qq), (rr), (ss), 
and (tt) are revised, to read as follows:


Sec.  660.22  Prohibitions.

* * * * *
    (ff) Own or operate a vessel that is registered for use under a 
Hawaii longline limited access permit and engaged in longline fishing 
for Pacific pelagic management unit species and fail to be certified 
for completion of a NMFS protected species workshop in violation of 
Sec.  660.34(a).
    (gg) Operate a vessel registered for use under a Hawaii longline 
limited access permit while engaged in longline fishing 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 
Administrator pursuant to Sec.  660.23(a), in violation of Sec.  
660.33(h).
    (ii) Fail to carry, or fail to use, a line clipper, dip net, or 
dehookers on a vessel registered for use under a Hawaii longline 
limited access permit in violation of Sec.  660.32(a).
    (jj) Engage in shallow-setting without a valid shallow-set 
certificate for each shallow-set made in violation of Sec.  660.33(c).
    (kk) 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).
    (ll) 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).
    (mm) Fail to begin the deployment of longline gear at least one 
hour after local sunset or fail to complete the deployment of longline 
gear before local sunrise from a vessel registered for use under a 
Hawaii limited access longline permit while shallow-setting north of 
23[deg] N. lat. in violation of Sec.  660.35(a)(10).
    (nn) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0[deg] lat.) with hooks other than offset circle hooks sized 18/0 or 
larger, with 10[deg] offset, in violation of Sec.  660.33(f).
    (oo) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0[deg] lat.) with bait other than mackerel-type bait in violation of 
Sec.  660.33(g).
    (pp) 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).
    (qq) Have float lines less than 20 meters in length 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, in violation of 
Sec.  660.33(d).
    (rr) Have light sticks 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, in violation of Sec.  660.33(d).
    (ss) Transfer a shallow-set certificate to a person other than a 
holder of a

[[Page 17351]]

Hawaii longline limited access permit in violation of Sec.  660.33(e).
    (tt) Land or possess more than 10 swordfish on board a vessel 
registered for use under a Hawaii longline limited access permit on a 
fishing trip for which the permit holder notified NMFS under Sec.  
660.23(a) that the vessel would conduct a deep-setting trip, in 
violation of Sec.  660.33(j).
* * * * *

0
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.
* * * * *

0
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, new paragraph (a)(4) is 
added, and paragraphs (b)(1) and (b)(3) are revised, 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, and dehookers 
meeting the minimum design and performance standards prescribed in 
paragraph (a)(4) of this section. These items must be used to disengage 
any hooked or entangled sea turtles with the least harm possible to the 
sea turtles, and if it is done by cutting the line, the line must be 
cut as close to the hook as possible. Any hooked or entangled sea 
turtle must be handled, resuscitated, and released in accordance with 
the requirements specified in paragraphs (b) through (d) of this 
section.
* * * * *
    (4) Dehookers-(i) Long-handled dehooker for ingested hooks. This 
item is intended to be used to remove ingested hooks from sea turtles 
that cannot be boated, and to engage a loose hook when a turtle is 
entangled but not hooked and line is being removed. One long-handled 
dehooker for ingested hooks is required on board. The minimum design 
and performance standards are as follows:
    (A) Hook removal device. The hook removal device must be 
constructed of 5/16-inch (7.94 mm) 316 L stainless steel and have a 
dehooking end no larger than 1 7/8 inches (4.76 cm) outside diameter. 
The device must be capable of securely engaging and controlling the 
leader while shielding the barb of the hook to prevent the hook from 
re-engaging during removal. It must not have any unprotected terminal 
points (including blunt ones), as these could cause injury to the 
esophagus during hook removal. The device must be of a size capable of 
securing the range of hook sizes and styles used by the vessel.
    (B) Extended reach handle. The hook removal device must be securely 
fastened to an extended reach handle or pole with a length equal to or 
greater than 150 percent of the vessel's freeboard or 6 ft (1.83 m), 
whichever is greater. It is recommended that the handle be designed so 
that it breaks down into sections. The handle must be sturdy and strong 
enough to facilitate the secure attachment of the hook removal device.
    (ii) Long-handled dehooker for external hooks. This item is 
intended to be used to remove externally-hooked hooks from sea turtles 
that cannot be boated. The long-handled dehooker for ingested hooks 
described in paragraph (a)(4)(i) of this section meets this 
requirement. The minimum design and performance standards are as 
follows:
    (A) Construction. The device must be constructed of 5/16-inch (7.94 
mm) 316 L stainless steel rod. A 5-inch (12.70-cm) tube T-handle of 1-
inch (2.54-cm) outside diameter is recommended, but not required. The 
dehooking end must be blunt with all edges rounded. The device must be 
of a size capable of securing the range of hook sizes and styles used 
by the vessel.
    (B) Handle. The handle must have a length equal to or greater than 
the vessel's freeboard or 3 ft (0.91 m), whichever is greater.
    (iii) Long-handled device to pull an ``inverted V''. This item is 
intended to be used to pull an ``inverted V'' in the fishing line when 
disentangling and dehooking entangled sea turtles. One long-handled 
device to pull an ``inverted V'' is required on board. The long-handled 
dehooker for external hooks described in paragraph (a)(4)(ii) of this 
section meets this requirement. The minimum design and performance 
standards are as follows:
    (A) Hook end. It must have a hook-shaped end, like that of a 
standard boat hook or gaff, which must be constructed of stainless 
steel or aluminum.
    (B) Handle. The handle must have a length equal to or greater than 
150 percent of the vessel's freeboard or 6 ft (1.83 m), whichever is 
greater. The handle must be sturdy and strong enough to allow the hook 
end to be effectively used to engage and pull an ``inverted V'' in the 
line.
    (iv) Tire. This item is intended to be used for supporting a turtle 
in an upright orientation while it is on board. One tire is required on 
board, but an assortment of sizes is recommended to accommodate a range 
of turtle sizes. The tire must be a standard passenger vehicle tire and 
must be free of exposed steel belts.
    (v) Short-handled dehooker for ingested hooks. This item is 
intended to be used to remove ingested hooks, externally hooked hooks, 
and hooks in the front of the mouth of sea turtles that can be boated. 
One short-handled dehooker for ingested hooks is required on board. The 
minimum design and performance standards are as follows:
    (A) Hook removal device. The hook removal device must be 
constructed of 1/4-inch (6.35-mm) 316 L stainless steel, and the design 
of the dehooking end must be such to allow the hook to be secured and 
the barb shielded without re-engaging during the hook removal process. 
The dehooking end must be no larger than 1 5/16 inch (3.33 cm) outside 
diameter. It must not have any unprotected terminal points (including 
blunt ones), as this could cause injury to the esophagus during hook 
removal. The dehooking end must be of a size appropriate to secure the 
range of hook sizes and styles used by the vessel.
    (B) Sliding plastic bite block. The dehooker must have a sliding 
plastic bite block, which is intended to be used to protect the sea 
turtle's beak and facilitate hook removal if the turtle bites down on 
the dehooker. The bite block

[[Page 17352]]

must be constructed of a 3/4-inch (1.91-cm) inside diameter high impact 
plastic cylinder (for example, Schedule 80 PVC) that is 10 inches 
(25.40 cm) long. The dehooker and bite block must be configured to 
allow for 5 inches (12.70 cm) of slide of the bite block along the 
shaft of the dehooker.
    (C) Shaft and handle. The shaft must be 16 to 24 inches (40.64 - 
60.69 cm) in length, and must have a T-handle 4 to 6 inches (10.16 - 
15.24 cm) in length and 3/4 to 1 1/4 inches (1.90 - 3.18 cm) in 
diameter.
    (vi) Short-handled dehooker for external hooks. This item is 
intended to be used to remove externally hooked hooks from sea turtles 
that can be boated. One short-handled dehooker for external hooks is 
required on board. The short-handled dehooker for ingested hooks 
required to comply with paragraph (a)(4)(v) of this section meets this 
requirement. The minimum design and performance standards are as 
follows:
    (A) Hook removal device. The hook removal device must be 
constructed of 5/16-inch (7.94-cm) 316 L stainless steel, and the 
design must be such that a hook can be rotated out without pulling it 
out at an angle. The dehooking end must be blunt, and all edges 
rounded. The device must be of a size appropriate to secure the range 
of hook sizes and styles used by the vessel.
    (B) Shaft and handle. The shaft must be 16 to 24 inches (40.64 - 
60.69 cm) in length, and must have a T-handle 4 to 6 inches (10.16 - 
15.24 cm) in length and 3/4 to 1 1/4 inches (1.90 - 3.18 cm) in 
diameter.
    (vii) Long-nose or needle-nose pliers. This item is intended to be 
used to remove deeply embedded hooks from the turtle's flesh that must 
be twisted in order to be removed, and also to hold in place PVC splice 
couplings when used as mouth openers. One pair of long-nose or needle-
nose pliers is required on board. The minimum design standards are as 
follows: The pliers must be 8 to 14 inches (20.32 - 35.56 cm) in 
length. It is recommended that they be constructed of stainless steel 
material.
    (viii) Wire or bolt cutters. This item is intended to be used to 
cut through hooks in order to remove all or part of the hook. One pair 
of wire or bolt cutters is required on board. The minimum design and 
performance standards are as follows: The wire or bolt cutters must be 
capable of cutting hard metals, such as stainless or carbon steel 
hooks, and they must be capable of cutting through the hooks used by 
the vessel.
    (ix) Monofilament line cutters. This item is intended to be used to 
cut and remove fishing line as close to the eye of the hook as possible 
if the hook is swallowed or cannot be removed. One pair of monofilament 
line cutters is required on board. The minimum design standards are as 
follows: Monofilament line cutters must be 6 to 9 inches (15.24 - 22.86 
cm) in length. The blades must be 1 3/4 (4.45 cm) in length and 5/8 
inches (1.59 cm) wide when closed.
    (x) Mouth openers and gags. These items are intended to be used to 
open the mouths of boated sea turtles, and to keep them open when 
removing ingested hooks in a way that allows the hook or line to be 
removed without causing further injury to the turtle. At least two of 
the seven different types of mouth openers and gags described below are 
required on board. The seven types and their minimum design standards 
are as follows.
    (A) A block of hard wood. A block of hard wood is intended to be 
used to gag open a turtle's mouth by placing it in the corner of the 
jaw. It must be made of hard wood of a type that does not splinter (for 
example, maple), and it must have rounded and smoothed edges. The 
dimensions must be 10 to 12 inches (24.50 - 30.48 cm) by 3/4 to 1 1/4 
inches (1.90 - 3.18 cm) by 3/4 to 1 1/4 inches (1.90 - 3.18 cm).
    (B) A set of three canine mouth gags. A canine mouth gag is 
intended to be used to gag open a turtle's mouth while allowing hands-
free operation after it is in place. A set of canine mouth gags must 
include one of each of the following sizes: small (5 inches) (12.7 cm), 
medium (6 inches) (15.2 cm), and large (7 inches) (17.8 cm). They must 
be constructed of stainless steel. A 1 3/4-inch (4.45 cm) long piece of 
vinyl tubing (3/4 inch (1.91 cm) outside diameter and 5/8 inch (1.59 
cm) inside diameter) must be placed over the ends of the gags to 
protect the turtle's beak.
    (C) A set of two sturdy canine chew bones. A canine chew bone is 
intended to be used to gag open a turtle's mouth by placing it in the 
corner of the jaw. They must be constructed of durable nylon, zylene 
resin, or thermoplastic polymer, and strong enough to withstand biting 
without splintering. To accommodate a variety of turtle beak sizes, a 
set must include one large (5 1/2 - 8 inches (13.97 - 20.32 cm) in 
length) and one small (3 1/2 - 4 1/2 inches (8.89 - 11.43 cm) in 
length) canine chew bones.
    (D) A set of two rope loops covered with hose. A set of two rope 
loops covered with a piece of hose is intended to be used as a mouth 
opener and to keep a turtle's mouth open during hook and/or line 
removal. A set consists of two 3-foot (0.91-m) lengths of poly braid 
rope, each covered with an 8-inch (20.32-cm) section of 1/2-inch (1.27-
cm) or 3/4-inch (1.91-cm) light-duty garden hose, and each tied into a 
loop.
    (E) A hank of rope. A hank of rope is intended to be used to gag 
open a sea turtle's mouth by placing it in the corner of the jaw. A 
hank of rope is made from a 6-foot (1.83-m) lanyard of braided nylon 
rope that is folded to create a hank, or looped bundle, of rope. The 
hank must be 2 to 4 inches (5.08 - 10.16 cm) in thickness.
    (F) A set of four PVC splice couplings. PVC splice couplings are 
intended to be used to allow access to the back of the mouth of a 
turtle for hook and line removal by positioning them inside a turtle's 
mouth and holding them in place with long-nose or needle-nose pliers. 
The set must consist of the following Schedule 40 PVC splice coupling 
sizes: 1 inch (2.54 cm), 1 1/4 inches (3.18 cm), 1 1/2 inches (3.81 
cm), and 2 inches (5.08 cm).
    (G) A large avian oral speculum. A large avian oral speculum is 
intended to be used to hold a turtle's mouth open and control the head 
with one hand while removing a hook with the other hand. It must be 9 
inches (22.86 cm) in length and constructed of 3/16-inch (4.76-mm) wire 
diameter surgical stainless steel (Type 304). It must be covered with 8 
inches (20.32 cm) of clear vinyl tubing (5/16-inch (7.94-mm) outside 
diameter, 3/16-inch (4.76-mm) inside diameter).
    (b) * * *
    (1) All incidentally hooked or entangled sea turtles must be 
handled in a manner to minimize injury and promote post-hooking or 
post-entangling survival.
* * * * *
    (3) If a sea turtle is too large or hooked or entangled in a manner 
as to preclude safe boarding without causing further damage/injury to 
the turtle, the items specified in paragraphs (a)(2) and (a)(4) of this 
section must be used to cut the line and remove as much line as 
possible prior to releasing the turtle.
* * * * *


0
7. Section 660.33 is revised to read as follows:


Sec.  660.33  Western Pacific longline fishing restrictions.

    (a) Annual Effort 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

[[Page 17353]]

registered for use under Hawaii longline limited access permits.
    (2) The Regional Administrator will divide the 2,120-set annual 
effort 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 one share for each permit held. If such division 
would result in shares containing a fraction of a set, the annual 
effort 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 December 1 of each year, the Regional 
Administrator will send shallow-set certificates valid for the upcoming 
calendar year to all holders of Hawaii longline limited access permits, 
as of the just previous November 1, that provided notice of interest to 
the Regional Administrator pursuant to paragraph (a)(3) of this 
section. The Regional Administrator will send shallow-set certificates 
valid for 2004 no later than June 1, 2004, based on permit holders as 
of May 1, 2004.
    (b) Limits on sea turtle interactions. (1) Maximum annual limits 
are established on the numbers of physical interactions that occur each 
calendar year between leatherback and loggerhead sea turtles and 
vessels registered for use under Hawaii longline limited access permits 
while shallow-setting. The limits are based on the annual numbers of 
the two turtle species expected to be captured in the shallow-set 
component of the Hawaii-based fishery, as indicated in the incidental 
take statement of the biological opinion issued by the National Marine 
Fisheries Service pursuant to section 7 of the Endangered Species Act. 
If the numbers in the incidental take statement are modified or if a 
new biological opinion is issued, new rule-making will be undertaken to 
change the interaction limits accordingly. The limits are as follows:
    (i) The annual limit for leatherback sea turtles (Dermochelys 
coriacea) is sixteen (16).
    (ii) The annual limit for loggerhead sea turtles (Caretta caretta) 
is seventeen (17).
    (2) Upon determination by the Regional Administrator that, based on 
data from NMFS observers, either of the two sea turtle 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 sea turtle interaction limit having been reached. The notification 
will include an advisement 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 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 sea turtle interaction 
limit was reached. Coincidental with the filing of the notification of 
the sea turtle interaction 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 sea turtle interaction 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[deg] lat.) providing that there is on board one 
valid shallow-set certificate for every shallow-set that is made north 
of the equator (0[deg] lat.) during the trip. For each shallow-set made 
north of the equator (0[deg] 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 fluorescent ``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 offset circle hooks 
sized 18/0 or larger, with 10[deg] offset, when shallow-setting north 
of the equator (0[deg] lat.). As used in this paragraph, an offset 
circle hook sized 18/0 or larger is one whose outer diameter at its 
widest point is no smaller than 1.97 inches (50 mm) when measured with 
the eye of the hook on the vertical axis (y-axis) and perpendicular to 
the horizontal axis (x-axis). As used in this paragraph, a 10[deg] 
offset is measured from the barbed end of the hook and is relative to 
the parallel plane of the eyed-end, or shank, of the hook when laid on 
its side.
    (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[deg] lat.). As used in 
this paragraph, mackerel-type bait means a whole fusiform fish with a 
predominantly blue, green, or grey back and predominantly grey, silver, 
or white lower sides and belly.
    (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[deg] lat.) any time during which the shallow-set component 
of the longline fishery is closed pursuant to paragraph (b)(3)(ii) of 
this section.
    (j) Owners and operators of vessels registered for use under a 
Hawaii

[[Page 17354]]

longline limited access permit may land or possess no more than 10 
swordfish from a fishing trip for which the permit holder notified NMFS 
under Sec.  660.23(a) that the vessel would engage in a deep-setting 
trip.

0
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.

0
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[deg] N. lat., begin the 
deployment of longline gear at least one hour after local sunset and 
complete the deployment no later than local sunrise, using only the 
minimum vessel lights necessary for safety.
* * * * *


Sec.  660.36  [Removed and Reserved]

0
10. Section 660.36 is removed and reserved.
[FR Doc. 04-7526 Filed 3-30-04; 4:34 pm]
BILLING CODE 3510-22-S