[Federal Register Volume 70, Number 133 (Wednesday, July 13, 2005)]
[Proposed Rules]
[Pages 40302-40305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13691]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 050620162-5162-01; I.D. 061505D]
RIN 0648-AS30


Fisheries off West Coast States and in the Western Pacific; 
Pelagic Fisheries; Additional Measures to Reduce the Incidental Catch 
of Seabirds in the Hawaii Pelagic Longline Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would require all Hawaii-based longline 
fishing vessels to either side-set (set longline gear from the side of 
the vessel rather than from the stern), or use a combination of other 
seabird mitigation measures to prevent seabirds, e.g., Laysan and 
black-footed albatrosses, from being accidentally hooked or entangled, 
and killed during fishing operations. This proposed rule is also 
intended to reduce the potential for interaction with endangered short-
tailed albatrosses that are known to be in the area in which the 
fishery operates.

DATES: Comments on the proposed rule must be received in writing by 
August 12, 2005.

ADDRESSES: You may submit comments on this proposed rule or its Initial 
Regulatory Flexibility Analysis (IRFA), identified by 0648-AS30 by any 
of the following methods:
     E-mail: [email protected]. Include in the subject 
line of the e-mail comment the following document identifier: Seabird 
Measures. Comments sent via e-mail, including all attachments, must not 
exceed a 10 megabyte file size.
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: William L. Robinson, Administrator, NMFS, Pacific 
Islands Region (PIR), 1601 Kapiolani Boulevard, Suite 1110, Honolulu, 
HI 96814.
     Fax: 808-973-2941.
    Copies of the regulatory amendment document (6 April 2005) entitled 
``Additional Measures to Reduce the Incidental Catch of Seabirds in the 
Hawaii-Based Longline Fishery'' (containing a Regulatory Impact Review 
and IRFA) and Final Environmental Impact Statement (FEIS) prepared for 
this action may be obtained from William L. Robinson (see ADDRESSES). 
Requests should indicate whether paper copies or electronic copies on 
CD-ROM are preferred. These documents are also available at the 
following websites: www.wpcouncil.org and http://swr.nmfs.noaa.gov/pir.

FOR FURTHER INFORMATION CONTACT: Robert Harman, NMFS PIR, 808-973-2937.

SUPPLEMENTARY INFORMATION: Hawaii-based longline fishing vessels 
inadvertently hook or entangle, and kill black-footed albatrosses 
(Phoebastria nigripes) and Laysan albatrosses (Phoebastria immutabilis) 
that nest in the Northwestern Hawaiian Islands (NWHI). Short-tailed 
albatrosses (Phoebastria albatrus), an endangered species that nests 
primarily on Tori Island off Japan and known to visit the NWHI, have 
been sighted occasionally in the vicinity of Hawaii longline vessels 
during fishing operations. However, there has been no confirmed report 
of any interaction between the short-tailed albatross and Hawaii 
longline fishery.
    The Western Pacific Fishery Management Council (WPFMC) developed 
and proposed seabird mitigation measures for Hawaii-based longline 
vessels, but these were not finalized due to a Biological Opinion 
issued late in 2000 by the U.S. Fish and Wildlife Service (USFWS 2000 
Biological Opinion) under section 7 of the Endangered Species Act 
(ESA). In mid-2001, NMFS implemented emergency seabird mitigation 
measures (66 FR 31561, 12 June 2001) in accordance with the terms and 
condition of the USFWS 2000 Biological Opinion on the short-tailed 
albatross.
    On May 14, 2002, NMFS published a final rule (67 FR 34408) 
establishing permanent seabird mitigation measures recommended by the 
WPFMC for the Hawaii longline fishery. That rule, which replaced the 
2001 emergency interim rule, is the result of the WPFMC's continued 
effort and commitment to minimize interactions between seabirds and the 
Hawaii-based longline fishery. A description of the WPFMC's role and 
ongoing actions in seabird mitigation in the western Pacific region is 
contained in the regulatory amendment document entitled ``Additional 
Measures to Reduce the Incidental Catch of Seabirds in the Hawaii-based 
Longline Fishery'' (WPFMC, 6 April 2005, see ADDRESSES).
    The May 2002 final rule required owners and operators of all 
vessels registered for use with Hawaii longline limited access permits 
and deploying longline gear north of 23[deg] N. latitude to use line-
setting machines (line shooters) with weighted branch lines, or use 
basket-style longline gear, and to use thawed, blue-dyed bait and 
strategic offal discards (which include fish, fish parts, or spent 
bait) during the setting and hauling of longline gear. The owners and 
operators of these vessels were also required to follow certain seabird 
handling techniques, and annually complete a protected species 
educational workshop on seabird mitigation conducted by NMFS.
    Since 2000, the number of fishery interactions with all seabirds 
was significantly reduced due to the closure of the shallow-set 
(swordfish-directed) component of the Hawaii-based longline fishery. 
This closure was implemented by NMFS to protect sea turtles via a 
number of emergency actions (64 FR 72290, 27 December 1999; 65 FR 
51992, 25 August 2000; 66 FR 15358, 19 March 2001) and a final rule (66 
FR 31561, 12 June 2001).
    Between 2002 and 2003, NMFS, WPFMC, and the fishing industry 
collaborated in a series of research activities to test new seabird 
deterrent methods for Hawaii longline vessels. The trials found that 
underwater setting chutes (which deploy baited hooks underwater and out 
of the reach of seabirds) and side-setting were both effective in 
reducing interactions with seabirds. These and other seabird deterrent 
strategies were analyzed and considered by the WPFMC as potential new 
seabird mitigation methods to cost-effectively further reduce the 
effects of the Hawaii longline fleet on seabirds.
    In March 2004, in concert with the regulatory amendment to reopen 
the swordfish component of the Hawaii longline fishery, NMFS and USFWS 
reinitiated ESA section 7 consultations on the effect of the fishery on 
the short-tailed albatross. During the consultation process, NMFS and 
USFWS also held discussions with the Hawaii Longline Association and 
WPFMC staff that included the consideration of

[[Page 40303]]

implementing side-setting and other effective mitigation measures by 
NMFS under the Fishery Management Plan for the Pelagics Fisheries of 
the Western Pacific Region (Pelagics FMP).
    On April 2, 2004, NMFS published a final rule (69 FR 17329) that 
reopened the shallow-set component of the Hawaii-based longline 
fishery. In this fishery, longline gear is deployed (set) relatively 
shallow, generally in the upper 100 m (328 ft) of the water column, by 
fishing vessels that are targeting swordfish, compared to the deeper 
longline sets targeting bigeye tuna. Shallow-set longline gear does 
incidentally take sea turtles, such as leatherback and loggerhead 
turtles, but this technique also poses a problem for seabirds. The 
problem is acute when a longline vessel deploys fishing gear during the 
early evening period when seabirds, such as Layman and black-footed 
albatrosses, are foraging for food at sea and are attracted to the 
baited hooks of the longline gear as it is being deployed. The April 
2004 rule placed restrictions on the types of hook 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 shallow-set 
fishing effort (2,120 sets), and other sea turtle mitigation measures. 
The rule also contained a seabird mitigation measure that required 
Hawaii longline vessels, when making shallow sets north of 23[deg] N. 
lat., to start and complete the deployment of longline gear (set and 
haul) during the nighttime (specifically to set no earlier than one 
hour after local sunset and to finish hauling no later than local 
sunrise) to minimize interactions with seabirds.
    At its meeting in June 2004, the WPFMC took initial action to 
establish additional seabird mitigation measures based on the promising 
results of the seabird mitigation studies conducted in 2002 and 2003. 
Subsequently, at its October 2004 meeting, the WPFMC recommended that 
NMFS amend the Pelagics FMP regulations to include the following 
seabird conservation measures: (a) when fishing north of 23[deg] N. 
lat., all deep-setting Hawaii longline vessels must either side-set, or 
use a tori line system plus the currently required measures (line 
shooter with weighted branch lines, blue-dyed thawed bait, and 
strategic offal discards), with the requirement to use strategic offal 
discards modified to require that vessel operators use them only when 
seabirds are present; and (b) all shallow-setting Hawaii longline 
vessels must either side-set, or use a tori line plus the currently 
required measures (night setting, blue dyed thawed bait, and strategic 
offal discards), wherever they fish, with the requirement to use 
strategic offal discards modified to require that vessel operators use 
them only when seabirds are present.
    NMFS estimated that the Hawaii longline fleet hooked or entangled 
2,320 albatrosses during 1999. In 2002 and 2003, when the shallow-set 
component of the Hawaii-based longline fishery was closed due to sea 
turtle bycatch, annual seabird interaction estimates fell to 113 and 
257, respectively. Although the shallow-set longline fishery reopened 
in 2004, NMFS projects that under a restricted fishery and with this 
proposed rule the Hawaii longline fishing fleet will have approximately 
six (6) interactions per year with black-footed and Laysan albatrosses.

Classification

    NMFS prepared an Environmental Impact Statement for this regulatory 
amendment. A Notice of Availability of the FEIS was published on 6 May 
2005.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA was prepared that describes the economic impact that this 
proposed rule, if adopted, would have on small entities. A description 
of why the action is being considered, the objectives and legal basis 
for the action, and a description of the action, may be found at the 
beginning of this section. There are no recordkeeping or reporting 
requirements proposed in this rule.
    This proposed rule does not duplicate, overlap, or conflict with 
any relevant Federal rules. All vessels are considered to be small 
entities. Therefore, there are no economic impacts resulting from 
disproportionality between large and small vessels. A summary of the 
analysis follows.

Number of Affected Small Entities

    The proposed rule would potentially apply to all holders of Hawaii 
longline limited access permits. The number of Hawaii longline limited 
access permits is 164. Not all such permits are renewed each year 
(approximately 110 were renewed in 2003, and 122 in 2004), and of those 
renewed, not all are used to participate in the Hawaii-based longline 
fishery. In a few cases, multiple permits are held by a single 
business, so the number of businesses to whom the rule would apply is 
slightly smaller than the number of affected permit holders. All 
holders of Hawaii longline limited access permits are small entities 
(i.e., they are businesses that are independently owned and operated, 
and have no more than $3.5 million in annual receipts). Therefore, the 
number of entities to which the rule would potentially apply is 
approximately 164.

Duplicating, Overlapping, and Conflicting Federal Rules

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

Alternatives to the Proposed Rule

    A total of 25 alternatives were considered. Each alternative would 
have applied one or more seabird deterrent strategies to the fishery 
sectors (deep- or shallow-setting) and by area (north of 23[deg] N. 
lat., south of 23[deg] N. lat., or all areas). Alternatives that would 
have applied deterrent measures to both fishery sectors in all areas 
were rejected as not being cost-effective, given that deep-setting 
vessels south of 23[deg] N. lat. average just over one (1) seabird 
interaction per year. Alternatives that would have required the use of 
an underwater setting chute were rejected as untenable based on the 
fact that the hardware broke when used experimentally, and likely would 
not withstand the rigors of routine use aboard commercial fishing 
vessels.
    Alternatives that would have required all shallow-setting vessels 
to side-set in one or more areas were rejected because (1) some smaller 
vessels may be unable to be reconfigured for side-setting, and (2) 
side-setting has been subject to limited experimental testing and, 
although it has been very promising for reducing seabird interactions, 
there has been no commercial testing and it is uncertain how well this 
technique will perform during routine use. NMFS and the WPFMC have 
determined that gradual implementation of side-setting would allow 
information collection and further consideration of the merits of this 
mitigation measure.

Effects of the Proposed Rule on Small Entities

    The proposed rule is expected to have mixed impacts on small 
entities. Current seabird deterrent requirements for all vessels 
fishing north of 23[deg] N. lat. will be modified to add a requirement 
to use a tori line system, as well as to require that strategic offal 
discards be used only when seabirds are present. Vessel operators may 
opt to side-set with no additional deterrents. Operators of vessels 
that can be easily reconfigured for side-setting may find that their 
operations are more efficient because (1) less bait will be taken by 
seabirds, thus potentially increasing fish catch rates, and (2) side-
setting can improve the efficiency of fishing

[[Page 40304]]

operations because fishing crews do not have to move the fishing gear 
from one location on the vessel to another between sets. Whether or not 
these savings will be enough to offset the initial purchase and 
installation cost (approximately $4,000) and ongoing maintenance cost 
(estimated at $50/year) is unknown. Operators of vessels that cannot be 
easily reconfigured for side-setting will have to use a tori line 
(approximately $3,300 for purchase and installation, with annual 
maintenance costs estimated at $2,300/year, per line), in addition to 
the currently required measures.
    To the extent that these measures increase fish catch rates by 
reducing bait loss, they will have a positive economic impact, but 
whether or not these savings will be enough to offset the costs of the 
measures is unknown. Under the proposed rule, vessels that shallow-set 
south of 23[deg] N. lat. will also be subject to seabird deterrent 
measures. Operators of these vessels will have to use the same measures 
as those required when shallow setting north of 23[deg] N. lat. Impacts 
on these operations are likely to be similar to those described above, 
but if side-setting is not feasible, vessel operators will have to 
invest in blue dye (estimated to cost $1,400/year), containers for 
offal discards (initial cost of $150), and tori lines ($3,300 
installation plus $2,300 annual maintenance, per line). Again, it is 
not known if potential increases in catch rates due to reduced bait 
loss will be enough to offset the costs of these deterrent measures. 
However, given the already low number of seabird interactions, this 
seems unlikely. In addition, estimates of net revenue per vessel from a 
2000 survey of the longline fishery indicate that net revenues ranged 
from a low of $18,208 for the average large tuna longline vessel to 
$385,776 for the average large swordfish longline vessel, with an 
average net return of $27,483 and $55,058 for all swordfish and tuna 
vessels, respectively. This would indicate that relative reductions in 
profitability from this proposed action based on size and target 
species may be disproportionately distributed among vessels in the 
Hawaii-based longline fleet. However, there is no indication that this 
proposed rule would lead to the cessation of operations of any vessel 
participating in this fishery.

Significant Alternatives to the Proposed Rule

    There were several alternatives considered (2A through 7C in the 
regulatory amendment document) that would have allowed vessel owners to 
minimize their costs for complying with this action by giving them the 
opportunity to use the current seabird avoidance methods at no 
additional cost, or to change their avoidance procedures and procure 
additional equipment such as a tori line, side-setting equipment, or 
blue dye at costs described above. However, the continuation of the 
current seabird avoidance methods would not be consistent with the 
USFWS 2004 Biological Opinion. Although that Opinion concluded that the 
shallow-set longline fishery was not likely to jeopardize the continued 
existence of the short-tailed albatross, it contains measures directing 
NMFS to ``implement and monitor side-setting or another appropriate 
seabird deterrent or combination of deterrents that the USFWS [Service] 
agrees is at least as effective as side-setting in reducing the risks 
to the short-tailed albatross in the shallow-set Hawaii-based longline 
fishery.''

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: July 6, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR 660 is proposed to 
be amended as follows:

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

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  660.22, paragraphs (aa), (bb), (cc), and (mm) are 
removed; paragraphs (dd) though (ll) are redesignated as (aa) through 
(ii); paragraphs (nn) through (vv) are redesignated as paragraphs (jj) 
through (rr); and paragraph (z) is revised to read as follows:


Sec.  660.22  Prohibitions.

* * * * *
    (z) Fail to fish in accordance with Sec.  660.35(a)(1) or Sec.  
660.35(a)(2) when operating a vessel registered for use under a Hawaii 
longline limited access permit in violation of Sec.  660.35(a).
* * * * *
    3. In Sec.  660.35, paragraphs (a) and (b)(10) are revised to read 
as follows:


Sec.  660.35  Pelagic longline seabird mitigation measures.

    (a) Seabird mitigation techniques. When deep-setting or shallow-
setting north of 23[deg] N. lat. or shallow-setting south of 23[deg] N. 
lat., owners and operators of vessels registered for use under a Hawaii 
longline limited access permit, must either side-set according to 
paragraph (a)(1) of this section, or fish in accordance with paragraph 
(a)(2) of this section.
    (1) Side-setting. Vessels opting to side-set under this section 
must fish according to the following specifications:
    (i) The mainline must be deployed at least 1 m (3.3 ft) forward 
from the stern corner of the vessel;
    (ii) The mainline and branchlines are set from the port or the 
starboard side of the vessel;
    (iii) If a mainline shooter is used, the mainline shooter must be 
mounted at least 1 m (3.3 ft) forward from the stern corner of the 
vessel;
    (iv) Branchlines must have weights with a minimum weight of 60 g 
(2.1 oz);
    (v) One weight must be connected to each branchline within 1 m (3.3 
ft) of each hook;
    (vi) When seabirds are present, the longline gear must be deployed 
so that baited hooks remain submerged and do not rise to the sea 
surface; and
    (vii) A bird curtain must be deployed. Each bird curtain must 
consist of the following three components: a pole that is fixed to the 
side of the vessel aft of the line shooter and which is at least 3 m 
(9.8 ft) long; at least three main streamers that are attached at 
regular intervals to the upper 2 m (6.6 ft) of the pole and each of 
which has a minimum diameter of 20 mm (0.8 in); and branch streamers 
attached to each main streamer at the end opposite from the pole, each 
of which is long enough to drag on the sea surface in the absence of 
wind, and each of which has a minimum diameter 10 mm (0.4 in).
    (2) Alternative to side-setting. Vessels that do not side-set must:
    (i) Discharge fish, fish parts (offal), or spent bait while setting 
or hauling longline gear, on the opposite side of the vessel from where 
the longline gear is being set or hauled, when seabirds are present;
    (ii) Retain sufficient quantities of fish, fish parts, or spent 
bait, between the setting of longline gear for the purpose of 
strategically discharging it in accordance with paragraph (i) of this 
section;
    (iii) Remove all hooks from fish, fish parts, or spent bait prior 
to its discharge in accordance with paragraph (i) of this section;

[[Page 40305]]

    (iv) Remove the bill and liver of any swordfish that is caught, 
sever its head from the trunk and cut it in half vertically and 
periodically discharge the butchered heads and livers in accordance 
with paragraph (i) of this section;
    (v) Employ a tori line system, prior to the first hook being set, 
that meets the following requirements:
    (A) The tori line must be at least 150 m (492 ft) long for shallow-
setting vessels and 75 m (246 ft) long for deep-setting vessels, and is 
composed of an aerial portion attached to a submerged portion. For a 
shallow-setting vessel, the aerial portion must extend at least 80 m 
(262 ft) behind the stern of the vessel, and the submerged portion must 
extend at least 70 m (230 ft). For a deep-setting vessel, the aerial 
portion must extend at least 40 m (131 ft), and the submerged portion 
must extend at least 35 m (115 ft);
    (B) The aerial portion of the line must be composed of a line 3-6 
mm (0.12-0.24 in) in diameter, and the submerged portion of the line 
shall be composed of twisted polypropylene or rope that is at least 5 
mm (0.20) in diameter;
    (C) The tori line must be fixed to a pole or vessel structure that 
allows the position of the line to be adjusted to achieve the 
requirements for aerial and submerged lengths and coverage over the 
area where the baited hooks are at or near the sea surface; and
    (D) At least three pairs of streamers must be attached to the 
aerial portion of the line at regular intervals, beginning no closer 
than 5 m (16.4 ft) to the tori pole or vessel structure. Each pair of 
streamers must be fixed to a single point on the line. Each streamer 
must be brightly colored and made of UV-protected plastic tubing or a 
minimum of 10 mm (0.4 in) polyester line or material of equivalent 
density. Each streamer must be long enough to drag on the sea surface 
in the absence of wind.
    (vi) When using basket-style longline gear north of 23[deg] N. 
lat., ensure that the main longline is deployed slack to maximize its 
sink rate; and
    (vii) Use completely thawed bait that has been dyed blue to an 
intensity level specified by a color quality control card issued by 
NMFS; and
    (viii) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb 
size) containing blue dye on board the vessel; and
    (ix) Follow the requirements in paragraphs (a)(3) and (a)(4) of 
this section, as applicable.
    (3) Deep-setting requirements. The following additional 
requirements apply to vessels engaged in deep-setting using a 
monofilament main longline north of 23[deg] N. lat. that do not side-
set. Owners and operators of these vessels must:
    (i) Employ a line shooter; and
    (ii) Attach a weight of at least 45 g (1.6 oz) to each branchline 
within 1 m (3.3 ft) of the hook.
    (4) Shallow-setting requirement. In addition to the requirements 
set forth in paragraphs (a)(1) and (a)(2) of this section, vessels 
engaged in shallow-setting that do not side-set must begin the 
deployment of longline gear at least 1 hour after local sunset and 
complete the deployment no later than local sunrise, using only the 
minimum vessel lights necessary for safety.
    (b) * * *
    (10) Any seabird that is released, in accordance with paragraph 
(b)(9) of this section or under the guidance of a veterinarian, must be 
placed on the sea surface.
* * * * *
[FR Doc. 05-13691 Filed 7-12-05; 8:45 am]
BILLING CODE 3510-22-S