[Federal Register Volume 70, Number 242 (Monday, December 19, 2005)]
[Rules and Regulations]
[Pages 75075-75080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24207]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 050620162-5326-02; 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: Final rule; notice of availability of Record of Decision (ROD).

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SUMMARY: NMFS issues a final rule to implement measures to further 
reduce the incidental catch of seabirds in the Hawaii-based longline 
fishery. Depending on the fishing method and area where the vessels 
operate, owners and operators of longline fishing vessels must either 
side-set (deploy 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 from being accidentally hooked, entangled, 
and killed during fishing operations.
    NMFS also announces the availability of the ROD for the ``Final 
Environmental Impact Statement, Seabird Interaction Avoidance Methods 
under the Fishery Management Plan for Pelagic Fisheries of the Western 
Pacific Region and Pelagic Squid Fishery Management under the Fishery 
Management Plan for Pelagic Fisheries of the Western Pacific Region and 
the High Seas Fishing Compliance Act'' (FEIS). The ROD announces that 
NMFS selects the Preferred Alternative of the FEIS, modified slightly, 
to cost-effectively further reduce the potentially harmful effects of 
the Hawaii-based longline fishery on seabirds.

DATES: Effective January 18, 2006.

ADDRESSES: Copies of the following documents are available from William 
L. Robinson, Administrator, NMFS, Pacific Islands Region (PIR), 1601 
Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814:
     The Regulatory amendment document entitled ``Additional 
Measures to Reduce the Incidental Catch of Seabirds in the Hawaii-Based 
Longline Fishery'' (April 6, 2005), which contains a Regulatory Impact 
Review and a Final Regulatory Flexibility Assessment (FRFA);
     The FEIS; and
     The ROD for the FEIS.
    Requests for copies of any of these documents should indicate 
whether paper copies or electronic copies on CD-ROM are preferred. 
These documents are also available at the following web site: http://swr.nmfs.noaa.gov/pir.

FOR FURTHER INFORMATION CONTACT: Robert Harman, NMFS PIR, 808-944-2271.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the Internet 
at: http://www.archives.gov/federal-register/publications.

Background

    On July 13, 2005, NMFS published in the Federal Register a proposed 
rule (70 FR 40302) that, depending on the fishing method and area where 
the vessels operate, would require owners and operators of Hawaii-based 
longline fishing vessels to either side-set (deploy 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 from being 
accidentally hooked, entangled, and killed during fishing operations.
    NMFS, the Western Pacific Fishery Management Council (WPFMC), and 
the fishing industry have collaborated on research to test side-setting 
and other measures as additional seabird deterrent methods for Hawaii 
longline vessels. The research results were analyzed and considered by 
the WPFMC as potential new seabird mitigation requirements to cost-
effectively further reduce the effects of the Hawaii longline fleet on 
seabirds. In October 2004, the WPFMC recommended that NMFS amend the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region (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 (bird-scaring) system plus the currently-required measures 
(blue-dyed thawed bait, strategic offal discards, and line shooter with 
weighted branch lines), 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, wherever they fish, must either side-set, or use a tori line 
plus the currently required measures (night setting, 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.
    In the ROD for the FEIS, NMFS selects the Preferred Alternative of 
the FEIS, modified slightly, to cost-effectively further reduce the 
potentially harmful effects of the Hawaii-based longline fishery on 
seabirds. The original Preferred Alternative included a requirement to 
add weights of 60 g (2.1 oz) to each branch line while side-setting. 
The modified Preferred Alternative reduces the weight requirement used 
on branch lines while side-setting to 45 g (1.6 oz). Additionally, the 
modified Preferred Alternative eliminates the requirement to use tori 
line systems.
    Additional background on this final rule may be found in the 
preamble to the proposed rule (70 FR 40302, July 13, 2005) and is not 
repeated here.

Comments and Responses

    NMFS received comments on the proposed rule (70 FR 40302, published 
July 13, 2005) from fishing industry organizations, government 
agencies, environmental groups, and private citizens. The responses are 
found later in this section. Based on comments received and on 
subsequent action by the WPFMC, the final rule contains changes to the 
proposed rule that change the weight required to sink branch lines and 
remove the proposed requirement to use tori lines when not side-
setting, and clarify technical specifications related to gear 
deployment.
    Prompted by several of the comments, the WPFMC held a meeting by 
teleconference on November 1, 2005, to address and discuss recent 
analyses involving two elements of the proposed rule, and to make 
adjustments to their recommendations in the proposed rule. As a result 
of the recommendations from that meeting, the final rule contains 
changes to the proposed rule that modify one technical requirement and 
remove another requirement.
    The first issue addressed by the WPFMC, the requirement to use 60 g 
(2.1 oz) weights on branch lines used to sink baited hooks on branch 
lines when side-setting, was revisited on two grounds: safety and 
relative

[[Page 75076]]

effectiveness. The final rule contains changes from the proposed rule 
that modify the specifications for the weights used on branch lines. 
These weights, deployed in the form of weighted swivels, are intended 
to quickly sink the baited hooks so that foraging seabirds are not 
attracted to the baits and subsequently hooked or entangled.
    There is a concern for human safety because when a weighted branch 
line breaks under strain, it tends to lash backwards toward the crew 
members who are handling the gear. Fishermen report that heavier 
weights are more dangerous than lighter ones, and that severe injuries 
from backlashed weights have occurred in the longline fishery. Thus, 
from a safety perspective, fishermen prefer to use a lighter-weight 
swivel.
    A recent study compared the effective sinking rates of baited hooks 
on branch lines weighted with a range of weights. The sink rates were 
almost identical for baited hooks with 40 g (1.4 oz) and 60 g (2.1 oz) 
weights. Thus, the advantage in sinking a baited hook out of the 
foraging range of seabirds using the 60 g (2.1 oz) weight had little 
advantage over using a 40 g (1.4 oz) weight. Because the industry 
preference is to use 45 g (1.6 oz) swivels, and because the weight 
requirement for branch lines when deep-setting from the stern is 45 g 
(1.6 oz), and because the differences in sink rates between the lighter 
and heavier weights were negligible, the WPFMC opted to modify its 
recommendation and require 45 g (1.6 oz) weights on the branch lines, 
rather than 60 g (2.1 oz) weights in the proposed rule. This final rule 
reflects that change.
    The second issue addressed during the WPFMC meeting was the 
requirement to use tori line systems. The WPFMC acknowledged that its 
previous recommendation to use tori lines was an incentive for vessels 
to convert to side-setting, that other measures have been effective in 
reducing interactions with seabirds, and that the construction and 
operating performance standards of these systems had not been fully 
analyzed in the Hawaii longline fishery. The incentive to side-set has 
worked unexpectedly well, with more than 40 vessels already converted 
and more awaiting funding to convert. NMFS has provided financial 
assistance to help convert the Hawaii longline fleet to side-setting 
operations.
    After the proposed rule was published, NMFS and the WPFMC received 
information that showed that interactions with seabirds have been 
reduced markedly from historical levels. When compared with the data 
from 1995-99, the rates for seabird takes (expressed as birds/1,000 
hooks) in the first and second quarters of 2005 decreased on the order 
of 90-99% from the historical averages. This decrease in seabird takes 
can be attributed to the requirement to set at night when shallow-
setting (starting one hour after local sunset and finishing one hour 
before local sunrise), combined with the effective use of other 
measures to reduce seabird interactions. These other measures include 
the use of thawed blue-dyed bait, strategic offal discards, and line 
shooters to sink lines quickly. Additionally, under a rule published on 
November 15, 2005 (70 FR 69282), shallow-set vessels are now required 
to use large, offset circle hooks, and this may also reduce the 
mortality of seabirds.
    Because the existing seabird measures for this fishery are 
relatively effective in minimizing the take of seabirds, and because 
the construction and operating performance standards of using tori line 
systems in the Hawaii pelagic longline fleet have not been thoroughly 
studied, the WPFMC removed its previous recommendation to require tori 
lines in this fishery. This final rule reflects that recommendation.
    Even though the WPFMC changed its previous recommendation to 
implement tori lines in the Hawaii longline fishery, NMFS understands 
that tori lines have proven to be effective in reducing interactions 
with seabirds in similar fisheries in other locations. NMFS is 
concerned that adding the tori line requirement at this time may 
potentially obscure the factors that have led to recent dramatic 
decreases in seabird catches. Based on the existing data and analyses, 
it is not clear whether tori line systems would lead to even further 
decreases in seabird interactions. Thus, NMFS views side-setting as a 
valuable addition to the techniques already in place, but will wait 
before considering other avoidance measures (e.g., tori lines). NMFS 
aims to collect information and analyze the effectiveness of the new 
measure before considering additional seabird mitigation measures.
    The requirements in 600.35(a)(1)(i) and (iii) were changed to 
clarify that the mainline must be deployed, and the mainline shooter 
must be mounted, as far forward on the vessel as practicable, to comply 
with the terms and conditions of a US Fish and Wildlife Service (USFWS) 
Biological Opinion, as supplemented, on the effects of the Hawaii 
longline fleet on the endangered short-tailed albatross.
    NMFS, the WPFMC, and fishery participants are continually 
collecting information about the effectiveness of fishing techniques 
that reduce the take of non-target species, including seabirds. This 
information comes from directed research, observer reports and other 
sources. Whenever new information is available and analyzed, NMFS and 
the Council can re-evaluate the management regime. In the future, if 
the information supports such actions, the WPFMC and NMFS may propose 
measures such as mandatory side-setting or tori lines, or the revision 
of existing measures such as blue-dyed bait, offal discards, etc.
    NMFS responds to the received written comments on the proposed 
rule, as follows:
    Comment 1: The take of albatrosses in the Hawaii longline fleet 
violates the Migratory Bird Treaty Act (MBTA) because there is no take 
authorization under this act.
    Response: The MBTA applies only in nearshore waters, i.e., from the 
shoreline seaward to three nautical miles offshore. The Hawaii pelagic 
longline fleet does not operate in waters covered by the MBTA, so no 
take authorization is required.
    Comment 2: Longline vessels should be required to use tori lines 
during gear hauling, in addition to during gear setting.
    Response: For the reasons identified above, the use of tori lines 
is not required by this rule. As new information on the construction 
and operating performance standards of tori lines in the pelagic 
longline fishery becomes available and is analyzed, the WPFMC and NMFS 
may revisit this issue for future management consideration.
    NMFS is taking a step-wise approach to building the suite of 
measures to reduce interactions between the Hawaii longline fleet and 
seabirds. Rather than adding two new measures at this time, only side-
setting will be added as an optional measure. NMFS and the WPFMC intend 
to evaluate the effectiveness of side-setting and current suite of 
optional measures, and consider if future modifications to the 
regulations need to be made. This final rule allows NMFS and the WPFMC 
to assess how well side-setting works in a commercial setting.
    Comment 3: The requirement for strategic offal discards will result 
in increased, rather than decreased, seabird captures.
    Response: This measure complies with the non-discretionary terms 
and conditions of a USFWS Biological Opinion, as supplemented, on the

[[Page 75077]]

effects of the Hawaii longline fleet on the endangered short-tailed 
albatross. The results of research on the effectiveness of strategic 
offal discards in the Hawaii pelagic longline swordfish fishery have 
demonstrated that offal, when discarded strategically, does reduce 
seabird interactions with longline gear.
    The requirement for strategic offal discards applies only when 
birds are present. Although discarding offal during setting is designed 
to distract birds away from baited hooks and reduce interactions, there 
is some anecdotal information that indicates a possible unwanted effect 
of attracting some birds to the vessel, increasing potential captures. 
NMFS is continuing to assess the impacts and effectiveness of strategic 
offal discards, and as new information becomes available and is 
analyzed, the WPFMC and NMFS may revisit this issue.
    Comment 4: The requirement to use weights on branch lines creates a 
safety hazard for the crew of Hawaii longline swordfish vessels.
    Response: The requirement to attach weights to branch lines is 
necessary for the rapid sinking of branch lines and baited hooks to 
minimize interactions with seabirds. The use of weighted lines has, 
however, been identified as a potential safety hazard. NMFS and the 
WPFMC are continuing to assess the effectiveness of and safety aspects 
of weighted lines (see discussion above on safety aspects of weighted 
lines). As new information becomes available and is analyzed, however, 
the WPFMC and NMFS may adjust the management measures. In the meantime, 
crew members may minimize the risk of injury by using wire leaders in 
lieu of monofilament leaders, and may wear safety equipment such as eye 
protection and hard hats. Also see the response to Comment 5.
    Comment 5: The use of 45 g (1.6 oz), not 60 g (2.1 oz), weighted 
swivels should be required to be used with side-setting.
    Response: NMFS and the WPFMC agree. For the reasons identified 
above, the requirement for branch line weights is changed to a minimum 
of 45 g (1.6 oz) in the final rule, from a minimum of 60 g (2.1 oz) in 
the proposed rule. NMFS and the WPFMC are continuing to assess the 
effectiveness and safety aspects of weighted lines, and as new 
information becomes available and is analyzed, the WPFMC and NMFS may 
adjust the management measures.
    Comment 6: The side-setting specifications should require 
deployment so that the baited hooks remain submerged all the time, not 
just when birds are present, because seabirds can arrive at any time.
    Response: Based on current research results and understanding of 
the fishery and its interaction with seabirds, the specification to 
ensure that baited hooks remain submerged when birds are present is 
adequate to reduce interactions. NMFS is continuing to assess the 
effectiveness of this specification, and as new information becomes 
available and is analyzed, the WPFMC and NMFS may revisit this issue 
for future management consideration.
    Comment 7: The term ``submerged portion'' in the definition of a 
tori line is problematic because the line may be dragging at the sea 
surface and not underwater.
    Response: For the reasons identified above, the use of tori lines 
is not required by this rule.
    Comment 8: To achieve the required lengths of the aerial portions 
of the tori line, items such as weighted funnels and buoys will need to 
be placed at the end of the line.
    Response: See the response to Comment 7.
    Comment 9: It is unclear why the regulations specify a minimum 
length of the portion of the tori line that must be in the water.
    Response: See the response to Comment 7.
    Comment 10: The design specified for the tori line for deep-setting 
longline vessels is unlikely to result in the aerial portion of the 
line maintaining a minimum length of 40 m (131 ft), as the regulations 
require.
    Response: See the response to Comment 7.
    Comment 11: More than three streamer pairs should be required to be 
used with each tori line.
    Response: See the response to Comment 7.
    Comment 12: The regulations do not specify whether flexible hollow 
rubber tubing may be used as streamer material.
    Response: See the response to Comment 7.
    Comment 13: The requirement to carry a minimum of two cans of blue 
dye is insufficient, as this amount of dye will not last for an entire 
trip.
    Response: Research has indicated that two cans of dye are 
sufficient to dye the bait used during a normal longline fishing trip. 
Nothing in the regulations prevents operators from carrying more dye if 
they think it is necessary to ensure that they comply with the 
requirement to dye blue all deployed bait to the degree required in the 
regulations.
    Comment 14: All vessels should be required to side-set unless they 
can demonstrate that doing so is impracticable.
    Response: The purpose of the final rule is to cost-effectively 
further reduce the potentially harmful effects of the longline fishery 
on seabirds. Research in the Hawaii longline fishery and elsewhere has 
identified and demonstrated several cost-effective methods to minimize 
seabird captures, including the alternatives in the regulations. In 
addition to the primary goal of reducing seabird captures, the required 
seabird avoidance measures also consider economic impacts and 
practicality. Allowing vessels to choose between alternative effective 
methods ensures that vessels can select the options that are most 
viable for that vessel and fishing operation. NMFS and the WPFMC are 
continuing to assess the effectiveness of all measures that potentially 
reduce seabird captures. As new information becomes available and is 
analyzed, the WPFMC and NMFS may consider revisions to the measures 
contained in this final rule.
    Comment 15: All longliners, not just shallow-set vessels, should be 
required to set at night when fishing north of 23[deg] N. lat., in 
addition to the other measures that are currently required.
    Response: See the response to Comment 14. The 23[deg] N. lat. 
boundary for the deep-set component of the fishery conforms with a 
USFWS Biological Opinion, as supplemented, on the effects of the Hawaii 
longline fleet on the federally listed short-tailed albatross. These 
birds have not been observed to range south of this latitude.
    Comment 16: The most effective combination of bird avoidance 
methods should be required to be used by all longline vessels to 
minimize bird captures, or the vessels should be required to use all 
known seabird avoidance methods in combination.
    Response: See the response to Comment 14.
    Comment 17: Vessels that choose not to side-set should be required 
to use paired tori lines, which were found to be effective in reducing 
bird captures in Alaska demersal longline fisheries.
    Response: See the response to Comment 7. Also, Hawaii's pelagic 
longline fishery differs significantly from Alaska's demersal longline 
fishery in terms of target species, oceanographic and environmental 
conditions, and fishing operations, and there is currently no 
information available that assesses the effectiveness, economic 
viability, or practicality of paired tori lines in the Hawaii pelagic 
longline fishery. NMFS and the WPFMC are

[[Page 75078]]

continuing to assess the effectiveness of tori lines, and as new 
information becomes available and is analyzed, the WPFMC and NMFS may 
consider revisions to the measures contained in this final rule.
    Comment 18: Vessels should be required to use seabird avoidance 
methods everywhere that they fish. The requirement for the use of bird 
avoidance methods only when fishing N. of 23[deg] N. lat. is 
insufficient because vessels catch seabirds south of this latitude.
    Response: Shallow-set longline fishing operations must use seabird 
avoidance techniques wherever they fish. The 23[deg] N. lat. boundary 
for the deep-set component of the fishery conforms with a USFWS 
Biological Opinion, as supplemented, on the effects of the Hawaii 
longline fleet on the federally listed short-tailed albatross. These 
birds have not been observed to range south of this latitude. The 
current catch levels of other seabirds in the Hawaii longline fishery, 
and the anticipated lower catch levels under the new regulations, are 
not anticipated to result in population-level effects on affected 
seabird populations. As new information on interactions with other 
seabirds becomes available and is analyzed, the WPFMC and NMFS may 
revisit this issue.
    Comment 19: When compared with historical bird capture rates, the 
current seabird regulations are extremely effective at reducing bird 
captures and, therefore, the proposal to add a requirement for use of a 
tori line is not justified.
    Response: NMFS and the WPFMC agree. For the reasons identified 
above, the use of tori lines is not required by this rule. As new 
information on the benefits and costs of tori lines in the pelagic 
longline fishery becomes available and is analyzed, the WPFMC and NMFS 
may revisit this issue for future management consideration.
    Comment 20: NMFS should establish an annual cap on the number of 
seabirds that may be captured by the Hawaii longline fleet.
    Response: The measures contained in the final rule comply with the 
requirements of a USFWS Biological Opinion on the effects of the Hawaii 
longline fishery on the endangered short-tailed albatross. Although no 
other seabird species with which the longline fishery interacts is 
listed as threatened or endangered, the measures are also effective at 
reducing interactions with other seabird species. The current seabird 
catch levels in the Hawaii longline fleet, and the anticipated lower 
levels under this final rule, are not believed to result in population-
level effects on seabird populations. Establishing thresholds for the 
capture of these birds is, therefore, not necessary.
    Comment 21: Longline fishing should be prohibited because it 
results in the mortality of endangered species.
    Response: The western Pacific pelagic longline fishery is governed 
under the Magnuson-Stevens Act and other applicable laws, including the 
Endangered Species Act (ESA) which is designed to protect species under 
threat of extinction. NMFS and the USFWS have determined that the 
fishery is not likely to jeopardize threatened or endangered species 
under their purview. Provided that specified terms and conditions of 
biological opinions are met, the ESA does authorize specific levels of 
the incidental take of endangered species. NMFS does comply with these 
biological opinions, so an incidental take is authorized.
    Federal and other fishery regulations benefit the Nation by 
minimizing and mitigating interactions with threatened and endangered 
species, while maintaining a viable and productive fishery. NMFS and 
the WPFMC continue to assess the effectiveness of all measures that 
potentially reduce the interactions between fishing gear and protected 
resources. As new information becomes available and is analyzed, the 
Council and NMFS may adjust the management regime, as appropriate.
    Comment 22: Side-setting vessels should be monitored to measure the 
continuing effectiveness of this technique in reducing seabird 
captures. Half of the fleet should be required to side-set, so that 
observers on these vessels can evaluate the effectiveness of the 
seabird avoidance method. Observers need to determine if seabirds 
habituate to these techniques.
    Response: By allowing vessels to choose between alternative 
effective mitigation methods, the final rule will allow for the 
collection of additional data regarding effectiveness of the various 
measures. More than 40 vessels in the fleet are currently side-setting. 
A NMFS and industry program is underway to provide technical assistance 
to vessels to convert to side-setting, so we anticipate a larger number 
of vessels to soon be converted to side-setting. NMFS is also in the 
process of conducting a survey of operators that are side-set 
longlining; the survey will identify strengths, weaknesses and issues 
related to this technique.
    Observer data will enable an assessment of the relative 
effectiveness of vessels opting to side-set versus the alternative 
seabird avoidance measures. Analyses of observer data will enable an 
assessment of the long-term efficacy of side-setting in reducing 
seabird captures. As new information becomes available and is analyzed, 
the WPFMC and NMFS may revisit this issue for future management 
consideration.
    Comment 23: More specific measures for the implementation of side-
setting are needed in the regulations.
    Response: The final rule specifies required elements of the side-
setting technique, including line deployment and line shooter (if used) 
locations on the vessel, branch line weights, submergence of baited 
hooks, and bird curtain design. NMFS considers these specifications 
sufficient guidance for the technique.

Changes to the Proposed Rule

    In Sec.  660.35, paragraphs (a)(1)(i) and (iii), are changed to 
clarify that, while side-setting, the mainline must be deployed as far 
forward on the vessel as practicable, but at least one meter from the 
stern. The mainline shooter, if used, must be mounted as far forward on 
the vessel as practicable, but at least one meter from the stern.
    In Sec.  660.35, paragraph (a)(1)(iv), the requirement to use 
branch line weights of at least 60 g (2.1 oz) is changed to require the 
use of branch line weights of at least 45 g (1.6 oz).
    In Sec.  660.35, paragraph (a)(2)(ix), the requirement to use tori 
lines when not side-setting is removed.

Classification

    The Regional Administrator, Pacific Islands Region, NMFS, 
determined that this rule is necessary for the conservation and 
management of the pelagic fisheries in the western Pacific region, and 
that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The potential economic impacts of this final rule on small entities 
were identified in an Initial Regulatory Flexibility Analysis (IRFA) 
and summarized in the Federal Register published on July 13, 2005 (70 
FR 40302). A FRFA was subsequently prepared. A description of the need 
for and objectives of the action may be found at the beginning of this 
section. There are no recordkeeping or reporting requirements in this 
rule. No public comment was made on the IRFA.
    All vessels are considered to be small entities. Therefore, there 
are no economic impacts resulting from disproportionality between large 
and

[[Page 75079]]

small vessels. A summary of the FRFA analysis follows.
    This final rule applies 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, 122 in 2004, and 120 in 2005) 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.
    NMFS considered a range of 25 alternatives to this final rule. 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 limited commercial testing of this seabird deterrent 
method. NMFS and the WPFMC determined that voluntary implementation of 
side-setting would allow the collection and analysis of additional 
scientific information about, and further consideration of, the value 
of this mitigation measure.
    This rule is expected to have mixed impacts on small entities. 
Current seabird deterrent requirements for all vessels fishing north of 
23[deg] N. lat. are modified 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 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 (up to 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 the currently required measures at no 
additional cost.
    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 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), and containers for offal 
discards (initial cost of about $150). 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 
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 rule would lead to the cessation of 
operations of any vessel participating in this fishery.
    NMFS considered several alternatives (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. In addition, a USFWS Biological Opinion (which 
concluded that the shallow-set longline fishery was not likely to 
jeopardize the continued existence of the endangered short-tailed 
albatross), recommended that NMFS ``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.'' Recent information 
suggests that the measures currently required in the shallow-set 
fishery (night-setting and other measures) may be as effective as side-
setting, so the WPFMC reversed its initial recommendation to require 
the use of tori lines. The WPFMC and NMFS will continue to analyze 
whether the additional use of tori lines would be justified in the 
future.
    Copies of the FRFA are available from William L. Robinson (see 
ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides''. The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rule making process, a small entity compliance guide (compliance 
guide) will be prepared. Copies of this final rule will be sent to all 
holders of permits issued for the western Pacific pelagic fisheries. 
Likewise, the compliance guide will be distributed to permit holders 
and will be available at the following web site http://swr.nmfs.noaa.gov/pir. Copies can also be obtained from the PIR (see 
ADDRESSES).
    NMFS determined that fishing activities conducted pursuant to this 
rule will not affect endangered and threatened species or critical 
habitat in any manner not considered in prior consultations on this 
fishery. In a February 11, 2005, letter from W. Robinson, NMFS, to G. 
Shultz, USFWS, NMFS provided a description of the proposed rule and 
notified the USFWS that reinitiating consultation under section 7 of 
the ESA was not warranted for the proposed Federal action because the 
proposed actions are consistent with the November 2002 and October 2004 
biological opinions on short-tailed albatross. The USFWS concurred with

[[Page 75080]]

this determination in a letter dated October 20, 2005.
    NMFS prepared an FEIS for this regulatory amendment. A Notice of 
Availability of the FEIS was published on May 6, 2005. The Record of 
Decision is available from William L. Robinson (see ADDRESSES).

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: December 13, 2005.
James W. Balsiger,
Acting 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

0
1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.22, 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); new paragraphs (ss) through (vv) are added and reserved; 
and paragraph (z) is revised to read as follows:


Sec.  660.22  Prohibitions.

* * * * *
    (z) Fail to fish in accordance with the seabird take mitigation 
techniques set forth at 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).
* * * * *

0
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 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. Owners and operators of vessels opting to side-
set under this section must fish according to the following 
specifications:
    (i) The mainline must be deployed as far forward on the vessel as 
practicable, and at least 1 m (3.3 ft) forward from the stern of the 
vessel;
    (ii) The mainline and branch lines must be set from the port or the 
starboard side of the vessel;
    (iii) If a mainline shooter is used, the mainline shooter must be 
mounted as far forward on the vessel as practicable, and at least 1 m 
(3.3 ft) forward from the stern of the vessel;
    (iv) Branch lines must have weights with a minimum weight of 45 g 
(1.6 oz);
    (v) One weight must be connected to each branch line 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. Owners and operators of 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;
    (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) 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
    (vi) Use completely thawed bait that has been dyed blue to an 
intensity level specified by a color quality control card issued by 
NMFS; and
    (vii) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb 
size) containing blue dye on board the vessel; and
    (viii) 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 branch line 
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, owners and 
operators of 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 to conform with navigation rules and 
best safety practices.
    (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. 05-24207 Filed 12-16-05; 8:45 am]
BILLING CODE 3510-22-S