FR Doc 03-30486

[Federal Register: December 10, 2003 (Volume 68, Number 237)]
[Proposed Rules]
[Page 68834-68854]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de03-28]

[[Page 68834]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224, and 660

[Docket No. 031125294-3294-01; I.D. 102903C]
RIN 0648-AP42

Fisheries Off West Coast States and in the Western Pacific;
Highly Migratory Species Fisheries

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement the Fishery Management
Plan for U.S. West Coast Fisheries for Highly Migratory Species (FMP),
which was submitted by the Pacific Fishery Management Council (Pacific
Council) for review and approval by the Secretary of Commerce.

DATES: Comments must be received by January 26, 2004.

ADDRESSES: Comments should be sent to Rodney R. McInnis, Acting
Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite
4200, Long Beach, CA 90802.
Copies of the FMP, environmental impact statement (EIS), regulatory
impact review (RIR), and an initial regulatory flexibility analysis
(IRFA) may be obtained from Donald O. McIsaac, Executive Director,
Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite
200, Portland, OR 97220-1384. Written comments regarding the burden-
hour estimates or other aspects of the collection-of-information
requirements contained in this proposed rule may be submitted to Svein
Fougner, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802, and by e-mail to David_Rostker@omb.eop.gov, or
faxed to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Svein Fougner, Sustainable Fisheries
Division, NMFS, at 562-980-4040.

SUPPLEMENTARY INFORMATION: The Pacific Council prepared the FMP under
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), 16 U.S.C. 1801 et seq. On January 18, 2002, a notice of
availability of a Draft Environmental Impact Statement for the FMP was
published in the Federal Register (67 FR 2651). The Pacific Council
held 7 public hearings on the FMP from January 28, 2002, to February 4,
2002, in the States of Washington, Oregon, and California. At its March
2002 meeting in Sacramento, CA, the Pacific Council reviewed public
comments received at the hearings, considered written and oral
comments, and adopted preliminary preferred alternatives for some
issues, leaving its decision on other alternatives for a future
meeting. At its October-November 2002 meeting in Foster City, CA, the
Pacific Council adopted all of its preferred alternatives and voted to
submit the FMP for Secretarial review.
Among the preferred alternatives was a provision to allow longline
fishing targeting swordfish east of 150[deg] W. longitude (long.).
Before the final FMP document was submitted, however, NMFS informed the
Pacific Council at its March 2003 meeting in Sacramento, CA about
potential impacts of the fishery under the preferred alternative on
endangered sea turtles. NMFS asked the Pacific Council to delay
submission of the FMP to provide time for a rigorous scientific
analysis of recently collected observer data, and review of the results
by the Pacific Council and its advisory bodies, prior to final
completion and submission of the FMP. Those data indicated that take
rates of sea turtles in the longline fishery in the eastern Pacific
were similar to those in the western Pacific, and if those rates were
representative of what could be expected in the fishery, there could be
excessive sea turtle takes under the Pacific Council's preferred
alternative. At the Pacific Council's June 2003 meeting in Foster City,
CA, NMFS presented reports on the catch rates of turtles in the
longline fishery and the results of the scientific analysis of the
data. NMFS informed the Pacific Council that allowing longline fishing
targeting swordfish east of 150[deg] W. long. may not provide
sufficient protection to endangered and threatened sea turtles.
Therefore, this alternative might not be approved. The Pacific Council
then heard reports from its advisory bodies and public comments and
concluded that the FMP should be submitted without changing any of its
preferred alternatives. The Pacific Council then completed the final
FMP and submitted it for Secretarial review. A Notice of Availability
of the FMP was published in the Federal Register at 68 FR 62763,
November 6, 2003.
The FMP that would be implemented by this proposed rule is intended
to address concerns about the effect of fishing on highly migratory
species (HMS) off the U.S. West Coast and on ocean resources caught
incidentally to fishing for HMS. The fish species included in the
management unit are tuna (yellowfin, bigeye, skipjack, albacore, and
northern bluefin), billfish (striped marlin and swordfish), oceanic
sharks (common thresher, bigeye thresher, pelagic thresher, shortfin
mako, blue), and dorado (also commonly known as mahi mahi and
dolphinfish). Other species ranging throughout the Pacific Ocean
throughout the Pacific are taken incidental to fishing for HMS but are
not in the management unit. A significant amount of information exists
on some species, such as some of the tunas, but comprehensive stock
assessments are needed for many species, which are harvested by
numerous coastal and distant-water fishing nations throughout the
Pacific. United States fishermen fish HMS in the U.S. exclusive
economic zone (U.S. EEZ), in the exclusive economic zones of other
nations, and on the high seas.
Marine mammals, sea turtles, and sea birds also are occasionally
caught incidental to fishing for HMS by some gear types. The effect on
such species of takes by fishing gear is a problem throughout the
Pacific Ocean, and the United States has in many cases already taken
action under the authority of the Magnuson-Stevens Act, the Endangered
Species Act (ESA) and the Marine Mammal Protection Act (MMPA) to
minimize or mitigate the impact of U.S. fisheries on these resources.
The FMP would provide additional protective measures for West Coast HMS
fisheries.
The FMP, if approved, would directly impose certain conservation
and management measures on the fisheries as well as provide a
procedural framework for future management actions that might be
necessary as the international and U.S. fisheries change.

Management Unit Species

The FMP is intended to ensure conservation and promote the
achievement of optimum yield of those HMS that are defined as
management unit species in the FMP. The FMP is designed to conserve HMS
throughout their individual ranges, both within and beyond the U.S. EEZ
to the extent practicable, recognizing that management authority of all
species falls within many jurisdictions. The Pacific Council reviewed 6
alternatives for designating management unit species. As indicated, the
proposed species to be managed are striped marlin and swordfish;
common, pelagic, and bigeye thresher shark, shortfin mako (bonito)
shark), and blue shark; north Pacific albacore, yellowfin, bigeye,
skipjack, and northern bluefin

[[Page 68835]]

tuna; and dorado. Other groupings of species (e.g., excluding dorado or
excluding bigeye and pelagic thresher sharks) are included in the FMP
as alternatives to the preferred alternative, and public comment is
sought on what species should be in the management unit.

Tuna

Some tuna species are highly productive and are harvested by
fishing fleets of many countries. For example, yellowfin and bigeye
tuna are harvested by the United States, Mexico, Costa Rica, and other
coastal states in Central and South America. Harvest limits for
yellowfin and bigeye tuna in the eastern Pacific are set by the Inter-
American Tropical Tuna Commission (IATTC) and not by NMFS through the
FMP. However, the decisions made by the IATTC regarding harvest limits
and the basis for those decisions would be available to the Pacific
Council for its review. Opinions of the Pacific Council on
international management would be forwarded to the U.S. State
Department through NMFS. If allocations among U.S. fishermen became
necessary as a result of decisions by the IATTC, the Pacific Council
would be the body with the responsibility to make recommendations to
NMFS regarding implementation. A similar arrangement would be utilized
by NMFS for any fishery in which an international organization is
involved. No harvest limits for bluefin tuna, skipjack tuna, or north
Pacific albacore are proposed by the FMP at this time, although a
maximum sustainable yield for each species of tuna is contained in the
FMP. Unilateral harvest limits for these species would have no
practical effect, given the international nature of the fisheries for
these species and the low portion of total catches for which the U.S.
fleet is responsible in most cases. However, if international action to
limit harvests is agreed to, then the Pacific Council may play a role
in implementing such limits with respect to U.S. fisheries.

Sharks

Most sharks are less productive than other HMS and are vulnerable
to overfishing. Although shark species included in the management unit
range throughout the Pacific Ocean and are not being overfished, the
FMP proposes to adopt harvest limits off the Pacific coast for common
thresher of 340 metric tons (mt) and shortfin mako of 150 mt to prevent
local depletion. The thresher shark harvest guideline is lower than the
recommended harvest limit set in the tri-state fishery management plan
for this species developed by the States of California, Oregon, and
Washington. The justification for a more conservative approach in the
FMP is the result of an analysis of historical harvests explained in
Chapter 3 of the FMP, which contains an estimate of a local maximum
sustainable yield that is less than that contained in the tri-state
plan. No harvest limit is proposed for pelagic thresher shark, bigeye
thresher shark or blue shark. Public comment is sought on this approach
and whether harvest limits should be placed on other species.

Other Species

No harvest limits are proposed for striped marlin, dorado, or
swordfish. Again, unilateral limits for U.S. fisheries would have no
beneficial effect, given the international nature of the fisheries and
the small share of total catch made by U.S. vessels. Like many HMS,
striped marlin off the Pacific coast is at the northern limit of its
range off California. The sale of striped marlin would be prohibited to
prevent commercial targeting of this species, which has such high value
for recreational fisheries. This species has been a target of
recreational fisheries for decades. The proposed limit on the sale of
marlin contained in the FMP continues a prohibition that has been in
California law since the 1930s.

Fishing Gear Employed

HMS are harvested off the West Coast by five commercial gear groups
and various recreational fisheries. Under the FMP, the authorized
commercial gears are surface hook-and-line, drift gillnet, longline,
purse seine, and harpoon. Recreational anglers would be allowed to
pursue HMS from commercial passenger fishing vessels and from private
boats with hook-and-line gear.
The definition of fishing gear is important because gear not
defined in regulations implementing the FMP would not be legal gear.
For example, mousetrap gear, which is a free floating hook-and-line
gear, is not defined in this proposed rule and would not be legal.
Likewise, if a drift gillnet is defined as having a mesh size of at
least 14 inches (35.56 cm), which is the proposed action in the FMP,
any net with a smaller mesh size would not be legal and could not be
fished from Pacific coast ports for HMS. This issue is discussed in
section 9.2.4.1 of the FMP and in Major Issues below.

Major Issues

1. Management of Longline Fishery

The preferred alternative with regard to longline fishing is to (1)
prohibit longline fishing in the U.S. EEZ; (2) adopt, for longline
vessels fishing west of 150[deg] W. long., all of the restrictions that
apply to longline vessels fishing with a limited entry permit under the
Fishery Management Plan for the Pelagic Fisheries of the Western
Pacific Region (Pelagics FMP); and (3) adopt, for longline vessels
fishing outside the U.S. EEZ and east of 150[deg] W. long., the same
restrictions as those that apply to longline vessels fishing with a
limited entry permit under the Pelagics FMP, except that the
restrictions that prevent shallow sets for swordfish would not apply.
The restrictions preventing shallow sets for swordfish in the
central and western Pacific were designed to reduce the impact on
threatened and endangered sea turtles taken incidental to swordfish
sets. After being presented with available information on the frequency
of sea turtle interactions expected under different fishing scenarios,
however, the Pacific Council felt that there was not sufficient
information available in the eastern Pacific to justify prohibiting
swordfish sets east of 150[deg] W. long. Further, the Pacific Council
concluded that it could not reasonably estimate the impacts (reduced
sea turtle takes, reduced swordfish catches, etc.) if there were
partial limits such as time/area closures. Therefore, the FMP proposes
that longline vessels be able to target swordfish in the eastern
Pacific east of 150[deg] W. long. These vessels would have to comply
with all other restrictions, including the requirements to maintain a
vessel monitoring system (VMS) on board the vessel, use line clippers
and dip nets for turtle release, and use seabird avoidance gear and
techniques as in waters west of 150[deg] W. long., as well as complying
with the proper handling of sea turtles and seabirds.
This approach would establish consistency with regulations in
waters west of 150[deg] W. long. while minimizing the economic impact
on vessels fishing from West Coast ports; however, regulations east of
150[deg] W. long. would be different. This is a serious issue for NMFS.
Based on available observer data, NMFS is concerned that allowing
shallow sets for swordfish east of 150[deg] W. long. may not comply
with the ESA; therefore, this measure is at risk of not being approved.
A formal consultation under section 7 of the ESA has been initiated
on the effects of the fisheries as they would

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operate under the FMP. The consultation will include a review of the
impact of all fishing gear regulated by the FMP, the impact of other
domestic fishing fleets as they now operate, and the most recent
information on the status and trends of sea turtle populations. A
biological opinion will be written, and if a jeopardy conclusion is
reached, a reasonable and prudent alternative will be provided to the
Pacific Council that will be designed to provide sufficient protection
for endangered and threatened sea turtles. Even if there is not a
jeopardy conclusion, the biological opinion may include reasonable and
prudent measures and conservation recommendations to reduce or mitigate
sea turtle interactions. Also, an incidental take statement will be
issued that may set terms and conditions on fishing to reduce or
mitigate sea turtle interactions. The biological opinion will thus
provide NMFS and the Pacific Council with information that could be
used to develop framework measures under the FMP that would further
address the impact of longline fishing on endangered and threatened sea
turtles. Finally, it is noted that the observer coverage anticipated
under the FMP will greatly improve the information base for future
management actions.
A section 7 consultation also has been initiated concerning the
potential impacts of the fisheries under the FMP on other species. The
FMP requires that longline fishers use seabird avoidance gear and
techniques, as is required for central and western Pacific longline
fishers. This consultation is scheduled to end on the same time frame
as the consultation with respect to species under NMFS jurisdiction.

2. Management of Drift Gillnet Fishing

Drift gillnet fishing is currently regulated by the states and by
regulations implementing the MMPA and the ESA. The preferred
alternative in the FMP is to incorporate under Magnuson-Stevens Act
authority the gear and time/area closures currently in state and ESA
regulations into the regulations implementing the FMP. Therefore, state
area closures that extend into the U.S. EEZ are included in this
proposed rule. Gear restrictions in state regulations and in NMFS
regulations under the ESA to protect sea turtles are included as well.
The California limited entry program for drift gillnet gear is not
included in this proposed rule because the Pacific Council decided not
to address overcapitalization issues at this time; however, the
California limited entry program would remain in effect under State of
California regulations.
Regulations establishing a Take Reduction Plan for drift gillnet
vessels that includes specifications for extender lines and pingers, an
acoustical device attached to the net, and skipper education workshops
can be found at 50 CFR 229.30 and 229.31. These regulations would
remain in effect when the FMP is implemented and would not be moved to
the section of the CFR that implements the FMP. However, it is
anticipated that the Pacific Council will be provided the opportunity
to participate in the Take Reduction Team process to ensure that the
Take Reduction Team process and recommendations and the FMP process and
actions are carried out in a coordinated manner.
Endangered and threatened sea turtles are defined as fish by the
Magnuson-Stevens Act. Area and seasonal closures designed to protect
sea turtles in the drift gillnet fishery that are currently in effect
at 50 CFR 223.206 would be moved to CFR 660 subpart K. The ESA section
7 consultations will address the impacts of drift gillnet fishing on
all listed species.
The FMP defines drift gillnet gear as 14-inch (35.56-cm) stretched
mesh or greater. A drift gillnet vessel with a mesh size less than 14
inches (35.56 cm) would not be able to target HMS. An incidental
landing of 10 HMS per trip, other than swordfish, would be allowed to
minimize bycatch of HMS while fishing for state managed species.

3. Permits

This proposed rule would require all commercial vessels fishing for
HMS to obtain a permit with an endorsement for the specific gear to be
used. A permit would also be required for all recreational charter
vessels and commercial passenger carrying fishing vessels (CPFV)
fishing for HMS. Other alternatives analyzed in the FMP include a
general permit without a gear specification and a permit system that
includes all recreational vessels. The purpose of a permit is to
identify the vessels in the HMS fisheries so that surveys can be made
when management information is required and to notify all participants
of potential management actions affecting the fisheries. Permits based
on gear type make surveys more efficient because landing and economic
information is often needed for specific gear types. Permits would be
issued to the owner of a specific vessel. Data would be maintained so
that landings by the permitted vessel or by the owner of the vessel can
be summarized, which would give the Pacific Council flexibility in
determining qualifications for limited entry permits if the Pacific
Council should decide to develop a limited entry program. No Federal
limited entry program is being proposed at this time because the
Pacific Council does not have sufficient information to determine the
need for such a program; however, the Pacific Council has assigned its
HMS Management Team to begin evaluating a limited entry program for
longline vessels fishing from West Coast ports. A limited entry program
would require substantial analysis and an amendment to the FMP.
Permits are currently required for vessels fishing on the high seas
under the authority of the High Seas Fishing Compliance Act of 1995 and
for longline vessels fishing under the authority of the Pelagics FMP.
In compliance with United States obligations under the Tuna Conventions
Act of 1950, NMFS is also providing information to the Inter-American
Tropical Tuna Commission (IATTC) for an international vessel register
including all U.S. vessels that fish tuna in the eastern Pacific Ocean.
Thus, a list of vessels that would likely fall under the jurisdiction
of the FMP has been completed by the Southwest Region, NMFS. The
regulations propose issuing HMS permits to all individuals on this
list. There would be no qualification requirements for a permit. Vessel
owners who have not received a permit to harvest HMS by 60 days
following the effective date of the final regulations would have to
apply for an HMS permit. All vessels would need an HMS permit by
January 1, 2005. There would be no cost to fishermen for this permit.

4. Recording and Recordkeeping

The proposed rule would require all commercial and recreational
charter vessels and CPFV to maintain a logbook of catch and effort
statistics for their HMS fishing under their permits to be submitted to
the Regional Administrator following the end of a fishing trip. The
proposed rule allows state logbooks to meet the Federal reporting
requirement if those logbooks are submitted on time and provide the
required information and if the information is available to the
Regional Administrator by agreement with that state. Federal logbooks
are now required for: vessels fishing on the high seas under the
authority of the High Seas Fishing Compliance Act of 1995, vessels
fishing tuna under the authority of the Tuna Conventions Act of 1950,
and vessels fishing under the authority of the regulations implementing
the Pelagics FMP. A Federal logbook for troll vessels fishing albacore,
which is currently voluntary,

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would be required under the FMP. The State of California requires a
logbook for harpoon vessels, drift gillnet vessels, and CPFVs. The
State of Oregon requires a logbook for drift gillnet vessels. These
state logbooks, which are tailored to specific gear types, would be
acceptable under these regulations. Duplicate logbooks would not be
required.

5. Bycatch

A number of provisions are included in the FMP to measure and
reduce bycatch and to provide better information to assess the amount
and type of bycatch in HMS fisheries. The proposed standardized
reporting system for bycatch assessment is to initially require that
longline, surface hook-and-line, small purse seine fisheries, and
recreational charter vessels carry observers when directed by the
Regional Administrator. An observer program is already in effect for
drift gillnet vessels and longline vessels, though coverage needs to be
expanded for the latter. In consultation with the Pacific Council, its
advisory bodies, and the fishery participants, NMFS will develop
initial observer coverage plans for these fisheries, which will be
completed 60 days following approval of the FMP. The observer coverage
plans for these fisheries may be adjusted as the initial data is
assessed and more is learned about the levels of coverage necessary to
obtain statistically reliable data on bycatch in the various fisheries.
In the longer term, NMFS will develop observer sampling plans for
private recreational vessels to assess potential ways of improving
information on managed species and on the quantity of bycatch in
recreational fisheries.
The FMP identifies a variety of measures already in effect (e.g.,
drift gillnet mesh size, time and area closures for certain gear types)
to prevent or reduce bycatch and evaluates the practicability of
additional bycatch reduction measures.

6. Management Organizations

There is no single, pan-Pacific institution that manages all HMS
throughout their ranges. The IATTC adopts conservation measures for
yellowfin and bigeye tunas in the eastern Pacific Ocean. Member nations
of the IATTC, including the United States, are obligated to implement
IATTC conservation measures for their national fisheries. On September
5, 2000, the Convention on Conservation and Management of Highly
Migratory Fish Stocks in the Western and Central Pacific Ocean was
opened for signature by the coastal nations of the western and central
Pacific and nations fishing in that region. The Convention has not yet
entered into force and has not been ratified by the United States, but
it would establish a commission empowered to adopt management measures
for HMS throughout their ranges in the central and western Pacific. The
IATTC and the new western Pacific commission may play important roles
in managing West Coast-based HMS fisheries.
In 1981, the United States and Canada signed the Treaty on Pacific
Coast Albacore Tuna Vessels and Port Privileges, which allows fishing
vessels of each nation to fish for albacore tuna in waters of the other
nation beyond 12 nautical miles. Recently, U.S. albacore fishermen have
become concerned about the increased effort by Canadian vessels in U.S.
waters and the lack of information on the amount of albacore taken by
Canada. The United States engaged in negotiations with Canada on these
issues, which resulted in a treaty amendment in July 2002. The United
States can promulgate regulations to implement the amended treaty if
the U.S. Congress enacts legislation authorizing the promulgation of
regulations.
Within the United States, three regional fishery management
councils have management responsibility for HMS in the Pacific Ocean:
the Pacific, the North Pacific, and the Western Pacific Fishery
Management Councils. The Western Pacific Fishery Management Council
manages highly migratory species in the central and western Pacific
under the authority of the Pelagics FMP. Many of the same stocks of HMS
are harvested in separate jurisdictions. In some cases vessels are
fishing in the same areas but landing in different jurisdictions, where
there may be different management objectives and management measures.
Effective management of HMS in the Pacific will require the Pacific
Council to be fully informed of management actions being considered in
the international organizations affecting HMS and will require the
Pacific Council to coordinate its activities with the Western Pacific
Fishery Management Council and North Pacific Fishery Management
Council. Although management objectives may differ in the respective
areas, consistency is expected to be achieved by NMFS to meet the
requirements of the Magnuson-Stevens Act while giving full
consideration to local needs.

7. Protected Species and the Framework Process

Drift gillnet and longline vessels encounter endangered and
threatened sea turtles and marine mammals during fishing operations,
and longline vessels encounter significant numbers of birds. Measures
to prevent jeopardy and minimize the impacts on these species have been
implemented through regulations under the authority of the MMPA and the
ESA. Area closures and special equipment apply to drift gillnet
vessels. There is much less information about the extent or nature of
interactions with sea turtles and seabirds by vessels engaged in purse
seine fishing for tuna, harpoon fishing for swordfish, and trolling for
albacore. However, available information indicates that interactions
are very rare. The FMP mandates observer coverage to ensure a sound
scientific basis for determinations of interactions and impacts and
consideration of management adjustments if necessary and appropriate.
It is possible that additional data will show that other fishing gear
used to harvest highly migratory species has an impact in protected
species. The FMP recognizes that the Pacific Council is the body best
suited to weigh and consider all potential impacts on fishing for HMS
from West Coast ports. The FMP includes framework procedures by which
the Pacific Council can consider the need for additional actions as new
information becomes available, e.g., observer data demonstrating a
protected species interaction problem. The framework process explicitly
includes the potential for action to conserve and protect species of
special concern.
Section 118(f)(9) of the MMPA authorizes the Assistant
Administrator for Fisheries (AA) to promulgate regulations governing
commercial fishing operations to implement a take reduction plan to
protect or restore a marine mammal stock or species. Likewise, vessels
fishing for highly migratory species may have an impact on threatened
or endangered species, which could require action by the Assistant
Administrator under the authority of the ESA. The Pacific Offshore
Cetacean Take Reduction Team established under the MMPA reviews fishery
and observer data and provides guidance to NMFS on actions needed to
protect marine mammals. The Southwest Regional Administrator will
provide these reports to the Pacific Council for recommendations on
whether and how best to implement any necessary measures. If
appropriate, the Pacific Council will utilize the

[[Page 68838]]

framework processes in the FMP to address these issues to the extent
FMP regulations are appropriate. This process does not prevent the AA
from taking action under the authority of the MMPA and the ESA
independent of the Pacific Council process.
The Pacific Council submitted draft regulations with the FMP as
required by the Magnuson-Stevens Act. While technical changes have been
made for clarity and compliance with requirements of the Office of the
Federal Register, no substantive changes in the regulations have been
made.

Classification

At this time, NMFS has not determined that the FMP this proposed
rule would implement is consistent with the national standards of the
Magnuson-Stevens Act and other applicable laws. NMFS, in making that
determination, will take into account the data, views, and comments
received during the comment period.
The Pacific Council prepared the FMP in the format of a final
environmental impact statement (FEIS) consistent with the National
Environmental Protection Act (NEPA). NOAA expects to file the FEIS with
the Environmental Protection Agency after Secretarial review of the FMP
has begun but before final action to approve, disapprove, or disapprove
in part the FMP. The FMP contains a framework management process that
facilitates timely implementation of management measures by the Pacific
Council without amending the FMP. This will allow the Pacific Council
and NMFS to act quickly to address resource conservation issues.
Maximum sustainable yield is established for all managed species to
ensure compliance with the Magnuson-Stevens Act, although some species
are also managed by international organizations and come within the
jurisdiction of other fishery management councils. Consistency of
management to ensure effective conservation and management is a goal of
the FMP. Harvest limits are established for common thresher and mako
shark to prevent local depletion. Although highly migratory, evidence
indicates that local depletion of these sharks can occur and would have
an impact on these species and the fisheries involved. To protect
endangered turtles and protected seabirds, the FMP makes regulations
governing longline fishing from West Coast ports consistent with the
rules established for longline vessels fishing out of Hawaii, when West
Coast vessels are fishing west of 150[deg] W. long.; therefore, all
U.S. fishermen must adhere to the same conservation measures in these
waters regardless of jurisdiction. However, in waters east of 150[deg]
W. long., West Coast longline vessels would not be subject to the same
limitation as western Pacific vessels. The impacts of this approach,
both with respect to implications for effective management and with
respect to ESA issues, will be fully evaluated through the review of
the FMP and the section 7 consultations described above. Rules
governing drift gillnet fishing issued under the authority of the ESA
are incorporated in the FMP. Incorporating rules in the FMP issued
under other authorities will ensure wider public review of management
issues and broader analysis. Permit and reporting requirements of the
FMP build on existing programs to obtain sufficient information needed
for management while minimizing duplication.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an IRFA that describes the economic impact this
proposed rule, if adopted, would have on small entities. The IRFA is
available from NMFS (see ADDRESSES). A summary of the IRFA follows:
A fish-harvesting business is considered a ``small'' business by
the Small Business Administration (SBA) if it has annual receipts not
in excess of $3.5 million. For related fish-processing businesses, a
small business is one that employs 500 or fewer persons. For marinas
and charter/party boats, a small business is one with annual receipts
not in excess of $5.0 million.
Fishing vessels targeting HMS are expected to be the only types of
small entities directly impacted by the proposed actions. Any
regulatory action under the FMP that would result in a reduction in
domestic landings of HMS are expected to be offset at the processor
level by imports at comparative prices. None of the initial regulatory
alternatives considered are expected to add to the costs or reduce
revenues of marinas and charter/party boats. Only the permit and
logbook requirements described below would add additional reporting.
A description of the action, why it is being considered, and the
legal basis for this action are contained in the SUMMARY and elsewhere
in the SUPPLEMENTARY INFORMATION of this proposed rule and are not
repeated here.
The FMP proposes management of 5 commercial fishing fleets and a
fleet of recreational charter vessels. Each fleet has its own gear
requirements, each has a differential impact on ocean resources, and
each has different economic circumstances. The FMP authorizes
commercial legal HMS gear as harpoon, surface hook and line, drift
gillnet of at least 14-inch (35.56-cm) stretched mesh or greater, purse
seine, and pelagic longline. The FMP authorizes rod and reel, spear,
and hook and line as recreational gear. An alternative for drift
gillnet gear was to allow stretched mesh less than 14 inches (35.56
cm).
The proposed alternative of requiring 14-inch (35.56-cm) stretched
mesh or larger is consistent with the historic use of drift gillnet
used to target swordfish and sharks. Fishermen estimated that there may
be as many as 8-10 vessels that occasionally use small-mesh drift
gillnets when albacore and bluefin tuna are available. There could be
as many as 20 vessels that might have fished small-mesh drift gillnets
at one time or another, based on landing receipts for drift gillnet
vessels landing albacore and bluefin tuna, but not swordfish. Vessels
fishing small mesh drift gillnet gear would be restricted to landing
HMS only as an incidental catch. The economic impact on the four
vessels that have been documented as using small mesh drift gillnets
amounts to between 20 percent and 48 percent of gross receipts. These
vessels landed between 1.0 and 15.0 mt of albacore and 0.0 to 3.0 mt of
bluefin tuna during the 2001 season. The vessels might make up for the
lost revenue through other small mesh gillnet fisheries or simply
return to using large mesh nets because all four vessels also currently
possess permits for use of the larger mesh gear. Vessels currently
fishing large mesh nets would suffer no economic loss under this
alternative as they would not need to modify their gear or current
fishing practices. The opportunity for albacore surface hook-and-line
vessels to deploy small mesh drift gillnet gear to target albacore
while on overnight trips would be preempted under this alternative.
Loss of this opportunity would prevent realization of potential
efficiency gains from landing more albacore per unit of time on the
water.
For drift gillnet vessels using nets with 14-inch (35.56-cm) or
greater stretched mesh, the FMP adopts all Federal conservation and
management measures in place under the MMPA and ESA; adopts all state
regulations for drift gillnet fishing under Magnuson-Stevens Act
authority, except the states' limited entry programs, which will remain
under state authority; modifies an Oregon closure inside 1000 fathoms
to be in effect year round; closes U.S. EEZ waters off Washington to
all drift gillnet vessels; and includes provisions (as in current ESA
regulations) to establish a turtle protection closure north of Point

[[Page 68839]]

Sur, CA to 45[deg] N. lat. from August 15 to November 15, and south of
Pt. Conception, CA to 120[deg] W. long. during a forecasted or
occurring El Nino event in the months of June, July, and August.
Existing Federal and state regulations, including current state drift
gillnet time-area closures and gear restrictions were deemed
appropriate for adopting. However, the Pacific Council concluded that
incorporating under MSA authority the existing state limited entry
programs would significantly increase Federal costs and administrative
burdens and was premature. The Pacific Council may consider limited
entry under the FMP in the future and has already asked its plan team
to begin consideration of limited entry for the West Coast longline
fishery. Closures off Washington and Oregon are intended to protect the
common thresher shark, sea turtles and marine mammals. This alternative
modifies the current state regulations to prohibit, year round, drift
gillnet fishing for swordfish and sharks in U.S. EEZ waters off Oregon
east of a line approximating the 1,000 fm curve (deleting an existing
May-August prohibition within 75 nautical miles) and prohibits drift
gillnet fishing in all U.S. EEZ waters off Washington. The State of
Washington currently does not allow the use of drift gillnet gear and
Oregon does not allow drift gillnets to target thresher shark, although
drift gillnet vessels have fished off both states and landed their
catch in California.
Approximately 64 vessels actively participate in the drift gillnet
fishery off the U.S. West Coast (see table below). All of these vessels
would be considered small businesses under the SBA standards.
Therefore, there would be no disproportionate financial impacts between
small and large vessels under the proposed action.

Total ex-vessel revenue and dependence on swordfish for the 64 drift gillnet vessels with landings in 2001.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dependence on Drift Gillnet Average Percent Drift
Caught Swordfish (category Average Total Ex-vessel Gillnet Swordfish
Number of Vessels of swordfish revenue/total Revenue ($/vessel) (swordfish revenue/ total
revenue) revenue)
--------------------------------------------------------------------------------------------------------------------------------------------------------
9 < percent $131,171 2.07 percent
3 < 5 - 10 percent $80,661 6.51 percent
6 10 - 15 percent $204,164 12.48 percent
8 15 - 20 percent $113,173 17.88 percent
8 20 - 25 percent $78,063 22.43 percent
4 25 - 30 percent $58,497 26.78 percent
5 30 - 40 percent $88,168 37.37 percent
4 40 - 50 percent $142,637 43.72 percent
5 50 - 60 percent $85,076 55.02 percent
8 60 - 70 percent $57,054 65.62 percent
4 70 percent $3,834 87.43 percent
--------------------------------------------------------------------------------------------------------------------------------------------------------

Financial or private costs, and measures of fishing performance are
those costs and performance measures faced by individual vessel owners.
Short-run, financial or private profit realized by vessel owners from
participation in the swordfish/shark gillnet fishery was calculated as
the difference between the annual private costs incurred during
swordfish/shark fishing operations -- the annual variable costs
associated with swordfish/shark fishing -- and the total ex-vessel
revenue generated from the vessel's annual landings from swordfish/
shark fishing. Only short-run measures of financial and economic
performance were calculated because many vessels typically engage in
other types of fishing, and there is no reasonable basis for allocating
fixed and common costs across types of fishing, i.e. across drift
gillnet, surface hook-and-line, or others. These are costs that do not
vary with the level of fishing activity and cannot be assigned to a
single type of fishing or output. Under these circumstances common or
fixed costs are excluded from the short-run net benefit and financial
profit calculations for each management alternative. Although drift
gillnet vessels harvest a number of species and will use alternative
gears, no attempt was made to evaluate potential changes in fishing
strategies by these vessels in response to different opportunities to
harvest HMS under each of the regulatory alternatives, and what this
would mean in terms of operating costs and ex-vessel revenues under
alternative fishing strategies.
Financial impacts of each drift gillnet regulatory alternative were
evaluated based on incremental changes from the status quo; i.e., the
difference between drift gillnet ex-vessel private profits under the
proposed action and drift gillnet private profits under the status quo.
The following table reports the estimated incremental changes in short-
run financial profits for drift gillnet vessels for each regulatory
alternative relative to the status quo. Financial impacts are evaluated
as the present value of changes in short-run financial profits over a
25 year time period discounted at 7 percent and 4 percent discount
rates. In column two, the present value of the change in average annual
short-run financial profit from the status quo (from column three) is
calculated for a 25-year time horizon at 7 percent and 4 percent
discount rates. Column three reports the difference in estimated
average annual short-run financial profit the difference between
average annual exvessel revenue and average annual variable costs -
under the alternative being considered and the average annual short-run
financial profit under the status quo alternative. The discount rate is
the rate of interest at which the cash flows associated with the
proposed policy are to be discounted. The choice of discount rate
reflects social time preference and the opportunity cost of resources
that are used under the policy. Social time preference tends to
discount the future less heavily than private time preference, while
opportunity cost considerations tend to weigh against using lower
discount rates for public policies for fear of preempting higher valued
private use of the appropriated resources.
The estimated changes in financial profit are based on cost and
earnings surveys of industry members. For the drift gillnet fishery, 42
vessel owners (about half the active fleet) responded by providing 2
years of data each. The response rate was sufficient to provide a
robust analysis.
The following abbreviations are used in the tables summarizing the
analyses:

[[Page 68840]]

NQ+ = non-quantifiable positive, NQ- = non-quantifiable negative, NC =
no change from status quo, and UN = unknown and NA = not applicable.

----------------------------------------------------------------------------------------------------------------
Change in the Present Value
of Short-Run Financial Average Annual Change in
Alternative Profits Relative to the Short-Run Financial Profits
Status Quo (25-Year Time Relative to the Status Quo
Horizon)
----------------------------------------------------------------------------------------------------------------
Drift Gillnet Alternative 1: Continues the swordfish/ NC NC
shark DGN fishery regulations under current state and
Federal authorities. (Status quo/No action)
Drift Gillnet Alternative 2: Differs from status quo NA -$56,769
with the imposition, on all DGN fishers, of a year
round Oregon closure inside 1000 fm (or way point
equivalent), elimination of the May-August closure
inside 75 miles off Oregon, and the closure of U.S.
EEZ waters off Washington. (Proposed Action)
7-percent Discount Rate -$661,557 NA
4-percent Discount Rate -$886,843 NA
Drift Gillnet Alternative 3: Endorses or adopts only NA NC
existing Federal (MMPA, ESA) DGN regulations into FMP;
defers to state regulations; no difference from status
quo.
7-percent Discount Rate NC NA
4-percent Discount Rate NC NA
Drift Gillnet Alternative 4: Endorses or adopts all NA UN
Federal conservation and management measures in place
under the MMPA and ESA, and adopts state regulations
under MSFCMA authority, but also includes and
federalizes the states' limited entry programs;
differs from status quo by the impact of federalizing
states' limited entry programs.
7-percent Discount Rate UN NA
4-percent Discount Rate UN NA
Drift Gillnet Alternative 5: Adopts turtle time/area NA -$247,764
closures per Biological Opinion, including larger area
closure north of Point Conception; differs from status
quo by the impact of enlarging the closed area.
7-percent Discount Rate -$2,887,333 NA
4-percent Discount Rate -$9,052,347 NA
Drift Gillnet Alternative 6: Prohibits the use of NA $310
drift gillnets to take swordfish and sharks in any
U.S. EEZ waters less than 1000 fm off Oregon and
Washington; differs from status quo by the impact of
closing this area.\2\
7-percent Discount Rate $3,617 NA
4-percent Discount Rate $4,848 NA
Drift Gillnet Alternative 7: Drift gillnets could not NA -$8,612
be used to take swordfish and sharks in any U.S. EEZ
waters north of 45[deg] N latitude year round,
including times when the northern turtle closure is
not in effect (Nov 16 to Aug 14); differs from status
quo by the impact of closing this area.
7-percent Discount Rate -$100,365 NA
4-percent Discount Rate -$134,544 NA
Drift Gillnet Alternative 8: Drift gillnetting would NA -$56,769
be prohibited inside 75 nm off Oregon from May 1 to
August 14 and inside the 1,000 fm curve the rest of
the year, and U.S. EEZ waters off Washington would be
closed year round to all, including Oregon- and
California-based DGN fishers; differs from the status
quo by the impact of the closures off Oregon and
Washington to all fishers.
7-percent Discount Rate -$661,557 NA
........................... ...........................
4-percent Discount Rate -$886,843 NA
----------------------------------------------------------------------------------------------------------------

The impact on drift gillnet vessels under Alternative 2, the
proposed action, primarily stems from rescinding the closure of the
U.S. EEZ to fishing by Oregon vessels inside 75 nautical miles off
Oregon from May 1 to August 14, closing waters inside the 1,000 fathom
curve off Oregon, and the entire U.S. EEZ off Washington to all
fishermen year round. These closures alone reduce the discounted value
of short-run financial profits available to the fleet formerly fishing
in those areas by $661,557 over 25 years at a 7 percent discount rate;
or $886,843 over 25 years at a 4 percent discount rate. (The data used
for the financial analysis of the Oregon and Washington closures were
provided by 2 fishermen out of the 2-3 active fishermen operating in
these areas and covered 2 years of fishing for both respondents.)
Although the absolute level of decline in short-run financial
profits from this measure is comparatively small in relation to the
entire fishery, the entire burden is borne by the 2-3 vessels that
currently fish both swordfish and thresher sharks, but especially the
latter using drift gillnet gear in these waters. Their lost opportunity
represents a decline of 51 percent in their short-run financial
profits.
The FMP establishes a prohibition on the use of pelagic longline
gear in the U.S. EEZ. The proposed action continues the de facto
longline prohibition throughout the U.S. EEZ and minimizes potential
bycatch of fish and protected species, and reduces fishery competition
problems. There are no vessels currently participating in a pelagic
longline fishery within the U.S. EEZ off the U.S. West Coast. Although
Oregon is the only state that allows pelagic longlining within the U.S.
EEZ on a case by case basis, no landings have occurred. All of the
Oregon vessels would be considered small businesses under the SBA
standards; therefore, there would be no financial impacts resulting
from disproportionality between small and large vessels under the
proposed action.
Financial impacts of each pelagic longline regulatory alternative
within the U.S. EEZ were evaluated based on

[[Page 68841]]

incremental changes from the status quo; i.e., the difference between
pelagic longline ex-vessel private profits under the proposed action
and pelagic longline private profits under the status quo. Because
there are no empirical financial data available for this fishery,
comparisons are based on the application of economic theory to
potential fishing opportunities arising from the regulatory
alternatives. The following table reports the estimated incremental
qualitative changes in short-run financial profits for vessels for each
regulatory alternative relative to the status quo. The annual average
change in short-run financial profits is also shown.

There are not expected to be any financial impacts associated with
Alternative 2 because it essentially represents the status quo. It
would eliminate the Oregon longline fishery, authorized outside 25
nautical miles under the State's developmental fisheries program permit
system. However, there are no active Oregon permits at the present
time. This alternative would also eliminate the potential opportunity
now available to West Coast based commercial fishermen for fishing off
Oregon and California and landing in Oregon, which is currently not
being exercised. The other alternatives offer potential increases in
financial profits if it can be scientifically determined that there
would not be an adverse impact on bycatch and protected species
interactions.
Beyond the U.S. EEZ, the FMP applies to West Coast-based longline
vessels all of the restrictions applied to Hawaii-based longline
vessels when fishing west of 150[deg] W. long., but applies selected
restrictions to vessels fishing east of 150[deg] W. long., which allows
West Coast-based vessels to target swordfish east of 150[deg] W. long.
(except for a partial closure in April and May). Restrictions limit sea
turtle and seabird interactions and improve monitoring of the fishery.
Swordfish targeting would be allowed east of 150[deg] W. long. for most
of the year under the FMP, though the ESA section 7 consultations may
result in a finding of jeopardy to one or more species listed under the
ESA and alternative management measures may be necessary. The
objectives of the proposed action provide for a longline fishing
opportunity, giving due consideration to traditional participants in
the fisheries, while providing adequate protection to sea turtles and
seabirds.
A total of 38 vessels participated in the West Coast-based, high
seas pelagic longline fishery during 2001 (see table below). All of
these vessels would be considered small businesses under the SBA
standards. Therefore, there would be no financial impacts resulting
from disproportionality between small and large vessels under the
proposed action.

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

[[Page 68842]]

Financial impacts of each high seas pelagic longline regulatory
alternative were evaluated based on incremental changes from the status
quo; i.e., the difference between pelagic longline ex-vessel private
profits under the proposed action and pelagic longline private profits
under Alternative 1, the status quo. The following table reports the
estimated incremental changes in short-run financial profits for
pelagic longline vessels for each regulatory alternative relative to
the status quo. Financial impacts are evaluated as the present value of
changes in short-run financial profits projected over a 25 year time
period, discounted at 7 percent and 4 percent discount rates. The
annual average change in short-run financial profits is also shown. The
changes in financial profit were estimated using cost and earnings data
voluntarily provided by industry members. Owners of 6 vessels provided
2 years of data each; this was about 25 percent of the active fleet in
that period.
Under the status quo, the FMP would not impose regulations on the
high seas, West Coast-based pelagic longline fishery. Fishing could
continue without regulations until regulations are established under
other authorities. Therefore, without the FMP, the future of the West
Coast-based pelagic longline fishery operating on the high seas is
expected to be different from recent conditions. Swordfish is the
target species of this fishery, and swordfish sets may be prohibited;
gear restrictions (no light sticks, minimum depth of sets, line
clippers to release sea turtles) would apply; and seabird avoidance
methods would be required. Longline fishing targeting tuna on the high
seas out of West Coast ports might then be an alternative if swordfish
targeting is prohibited, but current participants in the fishery
indicate that without being able to target swordfish, the high seas
longline fishery originating from West Coast ports would cease to
exist. In view of this likelihood, the estimated financial impacts
relative to Alternative 1 assume that regulations are likely in the
future that would prohibit West Coast-based pelagic longliners from
targeting swordfish on the high seas, and that under those
circumstances the fishery would cease to exist.
Alternative 2 would allow the fishery to continue under selected
restrictions, and the financial impact of Alternative 2, shown below,
is based on a projection of current private profits in the fishery.
Estimates of current private profits do not include the private costs
that might be incurred in adopting turtle and seabird saving measures,
placement of observers, and the installation and use of VMS, and any
lost revenues from being unable to fish from 15[deg] N. lat. to the
equator, and from 145[deg] W. long. to 180[deg] W. long. during April
and May. Therefore, private profits under Alternative 2 in the table
below may be overstated. While some West Coast-based, high seas pelagic
longliners harvest species other than swordfish, no attempt was made to
evaluate potential changes in fishing strategies by these vessels in
response to different harvest opportunities under each of the
regulatory alternatives, and what this would mean in terms of operating
costs and ex-vessel revenues under alternative fishing strategies.
Alternative 2 was chosen because the Pacific Council concluded that it
could not propose elimination of such a valuable fishery without clear
indication that the takes of sea turtles would be excessive.
Alternative 3 would prohibit swordfish targeting with
implementation of the FMP. Under Alternative 3 the assumption is that
the fishery would disappear in the long run, in which case there is no
difference from the status quo.

Alternative 2 would maintain the fishery, but impose some slight
additional costs on West Coast-based longliners targeting swordfish on
the high seas. Fishermen would have to incur some of the cost of
adopting turtle and seabird saving measures, accommodating observers
and using monitoring equipment such as a vessel monitoring system.
Therefore, under Alternative 2 there would be a slight reduction in
annual short-run, financial profits from those reported above. There
may also be reductions in swordfish catch rates due to the alternative
of turtle and seabird mitigation measures. This could further reduce
short-run, financial profits. If subsequent analyses prove that
swordfish longlining on the fishing grounds of the West Coast-based,
high seas pelagic longline fleet results in less impact on turtles and
other protected species (or that these interactions can be avoided),
its further development could lead to increased short run financial
profits. If on the other hand, subsequent analyses prove that swordfish
longlining in the fishing grounds in the eastern north Pacific action
area has potential for the same or greater impact on protected species,
the fishery may not be able to continue operating unless ways to
prevent jeopardy to protected species can be developed. In the latter
case there are likely to be additional harvesting costs

[[Page 68843]]

involved to perform the prevention measures which in the absence of any
improvements in harvest rates, or other efficiency gains, would reduce
short-run financial profits.
The fishery will probably be subject to regulations promulgated
under other authorities, which are expected to result in its
disappearance in time. This is reflected in the long-term status quo,
Alternative 1, where financial profits become zero with a phase out of
the fishery. In the near term however, the fishery may persist under
existing state regulations, in which case short-run financial profits
are expected to be $6.8 million per year under the status quo. These
are the same as the annual average financial profits that would be
expected under Alternative 2 minus the cost of adopting turtle and
seabird saving measures, accommodating observers and using monitoring
equipment such as vessel monitoring systems. Short and long-term
profits would disappear under Alternative 3 with the prohibition on
targeting swordfish. Therefore, in the long term, Alternative 3 is the
same as the status quo.
The FMP opens the entire U.S. EEZ to purse seine fishing, although
there has been little interest in such fishing for highly migratory
species off Oregon and Washington. The objectives of the proposed
action are to provide for additional purse seine fishing opportunities.
There were 27 vessels on average participating in the West Coast-based,
coastal purse seine fishery during the 1995-99 period. All of these
vessels would be considered small businesses under the SBA standards.
Therefore, there would be no financial impacts resulting from
disproportionality between small and large vessels under the proposed
action.
Financial impacts of each purse seine regulatory alternative were
evaluated based on incremental changes from the status quo; i.e., the
difference between expected purse seine ex-vessel private profits under
the proposed action and private profits under the status quo. The
following table reports the estimated incremental qualitative changes
in short-run financial profits for pelagic longline vessels for each
regulatory alternative relative to the status quo. There are no cost
and earnings data available for purse seine fishing for highly
migratory species off Oregon and Washington.

The proposed action will have little impact on private profits
because there has been virtually no purse seine fishing for highly
migratory species in the waters proposed to be closed.
Northern bluefin tuna do not generally occur in significant numbers
in the Pacific Northwest except during periods of elevated water
temperature. Thus, there would likely only be an increase in purse
seine fishing activity for northern bluefin tuna during El Nino-like
conditions. These conditions, by providing an additional fishing
opportunity, would likely increase short-run financial profits for
purse seiners that currently participate in the Oregon-Washington
sardine fishery. Under exceptionally good bluefin fishing in Oregon-
Washington waters, this opportunity might extend to California-based
purse seiners.
Alternatives 3 and 4 would preclude existing fishing opportunities
above 45[deg] N. lat. for California and Oregon vessels. This could
reduce their potential financial profits in years of exceptionally good
bluefin fishing in these waters.
It is noted that only 2 purse seine vessels were recorded as
landing HMS into a West Coast port in 2002. NMFS does not expect the
development of a significant HMS purse seine fishery on the West Coast,
due to lack of processing capability and markets, and the unlikelihood
of new investment in new processing capability under the current price
structure.
The FMP would prohibit the sale of striped marlin by all vessels.
The objectives are to provide for continued recreational fishing
opportunities. Prohibiting sale removes the incentive for commercial
fishermen to take striped marlin.
Financial impacts of each regulatory alternative pertaining to the
sale of striped marlin were evaluated based on incremental changes from
the status quo; i.e., the difference between expected ex-vessel private
profits under the proposed action and private profits under the status
quo. The following table reports the estimated incremental qualitative
changes in short-run financial profits for each regulatory alternative
relative to the status quo.

[[Page 68844]]

The proposed action will have little impact on private profits
because there is virtually no change from the status quo. Striped
marlin cannot now be sold, so no revenue impacts to the fishermen will
ensue.
The FMP would require a Federal permit with a specific endorsement
for each gear type (harpoon, drift gillnet, surface hook and line,
purse seine, and pelagic longline). The permits and endorsements are
subject to sanctions, including revocation, as provided by Section 308
(g) of the Magnuson-Stevens Act. Permits are a standard tool used to
support management by facilitating collection of biological, economic
or social data, facilitating enforcement of laws and regulations,
identifying those who would be affected by actions to prevent or reduce
excess capacity in the fishery, and providing information to meet
international obligations.
A review of NMFS data bases indicates that there are an estimated
1,337 vessels likely to harvest highly migratory species. All vessels
would be considered small businesses under the SBA standards.
Therefore, there would be no disproportionate financial impacts between
small and large vessels under the proposed action. The proposed action
is duplicative in the sense that permit requirements implemented for
other purposes (e.g., HSFCA) may require a vessel to have more than one
permit to fish highly migratory species.
Financial impacts of each regulatory alternative pertaining to
commercial fishing permits were evaluated based on incremental changes
from the status quo; i.e., the difference between expected ex-vessel
private profits under the proposed action and private profits under the
status quo. The following table reports the estimated incremental
qualitative changes in short-run financial profits for each regulatory
alternative relative to the status quo. The annual average change in
short-run financial profits is also shown.

Under Alternative 2 there would be a slight reduction in financial
profits due to the cost of acquiring a commercial permit. Estimates of
permit costs for commercial vessels are about $60.00 per vessel; a $40
permit fee and $20 for the time involved in filling out or confirming
information on the permit registration form. The same costs would be
entailed under Alternatives 3 and 4, no matter what the scope of the
permit. This is an additional fixed cost, and although minor, may be
disproportionate across smaller vessels engaged in HMS fisheries.
The FMP requires a Federal permit for all charter or commercial
passenger carrying fishing vessels (CPFV) from which recreational
fishers pursue highly migratory species, but an existing state permit
or license for recreational vessels could meet this requirement. As
with commercial fishing permits, this measure would provide a mechanism
for identifying the scope of the recreational fishery and the
participants so that data collection and research could be more focused
and effective. There are approximately 300 charter and CPFV vessels on
the West Coast. All these vessels would be considered small businesses
under the SBA standards; therefore, there would be no financial impacts
resulting from disproportionality between small and large vessels under
the proposed action. The proposed action would not require new
reporting, record-keeping, or other compliance requirements. However,
permit processing and periodic permit renewal would be necessary under
state laws and regulations.
Financial impacts of each regulatory alternative pertaining to
recreational fishing permits were evaluated based on incremental
changes from the status quo; i.e., the difference between expected ex-
vessel private profits under the proposed action and private profits
under the status quo. The following table reports the estimated
incremental qualitative changes in short-run financial profits for each
regulatory alternative relative to the status quo. The annual average
change in short-run financial profits is also shown.

[[Page 68845]]

Under Alternative 2, recreational vessels without a state permit
would experience a slight reduction in financial profits due to the
cost of acquiring a Federal recreational permit, which is estimated to
be about $50.00 per vessel. This is an additional fixed cost, and even
though minor, may be disproportionate across smaller vessels engaged in
commercial passenger recreational fishing for highly migratory species.
The same costs would be entailed under Alternatives 3 and 4, no matter
what the scope of the permit. Alternative 3 could be somewhat
duplicative if it were to overlap state requirements. If a vessel has a
choice between a state and a federally issued permit to meet this
requirement, there could be some cost savings, improved financial
profits, if there is a difference in costs between state and Federal
permits.
The FMP would require all commercial and recreational party or
charter fishing vessels to maintain and submit logbooks to NMFS. State
or existing Federal logbooks could meet this requirement as long as
essential data elements are present and data are available to NMFS
subject to a data exchange agreement. This measure would facilitate the
monitoring of commercial and recreational vessel activities and enhance
data collection. This measure would effect about 1,354 commercial and
recreational vessels. The number of vessels for which this requirement
poses an increased record keeping burden is unknown, but many vessels
already are required to maintain state or existing Federal logbooks
that would satisfy this requirement. The proposed action would impose
new reporting and record-keeping requirements for some vessels. The
proposed action is designed to avoid duplication of existing Federal
reporting requirements.
Financial impacts of each regulatory alternative pertaining to
fishing vessel reporting requirements were evaluated based on
incremental changes from the status quo; i.e., the difference between
expected ex-vessel private profits under the proposed action and
private profits under the status quo. The following table reports the
estimated incremental qualitative changes in short-run financial
profits for each regulatory alternative relative to the status quo. The
annual average change in short-run financial profits is also shown.

Under Alternative 2 there would be a slight reduction in financial
profits due to the cost of satisfying the proposed reporting
requirements for logbooks for those vessels that do not already meet
these requirements. There are also additional reporting requirements
associated with the use of vessel monitoring systems and vessel
markings. Vessel monitoring systems would be required of longline
vessels, but there are not expected to be any costs to vessels under
this requirement. All vessels would be required to have identifying
numbers, which would impose some additional fixed costs, and although
minor, may be disproportionate across smaller vessels engaged in
fisheries for highly migratory species. Under Alternative 3, financial
impacts would be less because many vessels already maintain logbooks
under existing Federal laws.

[[Page 68846]]

This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). These requirements will be submitted to OMB for approval. The
public reporting burden for these requirements is estimated to be 5
minutes for a confirmation of records for a permit application, 10
minutes to correct a record for a permit application, 30 minutes for a
new permit application, 5 minutes for filling out a log each day, and
45 minutes to affix the official number of a vessel to its bow and
weather deck. In addition, for longline vessels, the reporting burden
includes 4 hours for installation of a vessel monitoring system, 2
hours for maintenance of the system, and 24 seconds for electronic
reporting via the satellite based vessel monitoring system. These
estimates include the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.
Public comment is sought regarding whether these proposed
collections of information are 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 information
technology. Written comments regarding the burden-hour estimates or
other aspects of the collection-of-information requirements contained
in this rule may be submitted to, Svein Fougner, Assistant
Administrator for Sustainable Fisheries, NMFS, Southwest Region (SEE ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to (202)
395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirement of the PRA, unless that collection of information displays
a currently valid OMB control number.
A formal consultation under the ESA was initiated on September 24,
2003. Based on the conclusions of the consultation, the Regional
Administrator will determine if fishing activities under this proposed
rule are likely to affect adversely endangered or threatened species or
their critical habitat under NMFS jurisdiction.
A formal consultation with the Fish and Wildlife Service (FWS)
under the ESA was initiated by NMFS on September 22, 2003. Based on the
consultation, the FWS will determine if fishing activities under this
proposed rule are likely to affect adversely endangered or threatened
species or their critical habitat under its jurisdiction.
The Regional Administrator has determined that, based on the
information and analyses in the FMP, fishing activities conducted under
this proposed rule would have no adverse impacts on marine mammals.
Regulations promulgated under MMPA authority to implement a Pacific
Offshore Cetacean Take Reduction Plan would remain in effect.

List of Subjects

50 CFR Part 223

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

50 CFR Part 224

Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements.

50 CFR Part 660

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

Dated: December 3, 2003.
William T. Hogarth,
Assistant Administrator, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 223, 50 CFR
part 224, and 50 CFR part 660 are proposed to be amended as follows:

50 CFR Chapter VI

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as
follows:

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.
2. In Sec. 223.206, paragraph (d)(6) is removed and reserved.

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

3. The authority citation for part 224 continues to read as
follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
4. In Sec. 224.104, paragraph (c) is revised to read as follows:

Sec. 224.104 Special requirements for fishing activities to protect
endangered sea turtles.

* * * * *
(c) Special prohibitions relating to leatherback sea turtles are
provided at Sec. 223.206(d)(2)(iv) and Sec. 660.713.

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

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

Authority: 16 U.S.C. 1801 et seq.
6. Add subpart K to read as follows:

Subpart K-Highly Migratory Fisheries

Sec.
660.701 Purpose and scope.
660.702 Definitions.
660.703 Management area.
660.704 Vessel identification.
660.705 Prohibitions.
660.706 Treaty Indian rights.
660.707 Permits.
660.708 Reporting.
660.709 Annual specifications.
660.710 Closure of directed fishery.
660.711 General catch restrictions.
660.712 Longline.
660.713 Drift net.
660.714 Purse seine.
660.715 Harpoon.
660.716 Surface hook-and-line.
660.717 Framework for revising regulations.
660.718 Exempted fishing.
660.719 Scientific observers.

Subpart K--Highly Migratory Fisheries

Sec. 660.701 Purpose and scope.

This subpart implements the Fishery Management Plan for U.S. West
Coast Fisheries for Highly Migratory Species (FMP). These regulations
govern commercial and recreational vessels based on the West Coast and
fishing for HMS seaward of the coasts of Washington, Oregon, and
California.

Sec. 660.702 Definitions.

Basket-style longline gear means a type of longline gear that is
divided into units called baskets, each consisting of a segment of main
line to which 10 or more branch lines with hooks are spliced. The
mainline and all branch lines are made of multiple braided strands of
cotton, nylon, or other synthetic fibers impregnated with tar or other
heavy coatings that cause the lines to sink rapidly in seawater.
Closure, when referring to closure of a fishery, means that taking
and retaining, possessing, or landing the particular species or species
group is prohibited.
Commercial fishing means (1) Fishing by a person who possesses a
commercial

[[Page 68847]]

fishing license or is required by law to possess such license issued by
one of the states or the Federal Government as a prerequisite to
taking, landing and/or sale; or
(2) Fishing that results in or can be reasonably expected to result
in sale, barter, trade or other disposition of fish for other than
personal consumption.
Commercial fishing gear means the following types of gear and
equipment used in the highly migratory species fisheries:
(1) Harpoon. Gear consisting of a pointed dart or iron attached to
the end of a pole or stick that is propelled only by hand and not by
mechanical means.
(2) Surface hook-and-line. Fishing gear, other than longline gear,
with one or more hooks attached to one or more lines (includes troll,
rod and reel, handline, albacore jig, live bait, and bait boat).
Surface hook and line is always attached to the vessel.
(3) Drift gillnet. A panel of netting, 14 inch stretched mesh or
greater, suspended vertically in the water by floats along the top and
weights along the bottom. A drift gillnet is not stationary or anchored
to the bottom.
(4) Purse seine. An encircling net that may be closed by a purse
line threaded through the bottom of the net. Purse seine gear includes
ring net, drum purse seine, and lampara nets.
(5) Pelagic longline. A main line that is suspended horizontally in
the water column and not stationary or anchored, and from which dropper
lines with hooks (gangions) are attached. Legal longline gear also
includes basket-style longline gear.
Council means the Pacific Fishery Management Council, including its
Highly Migratory Species Management Team (HMSMT), Scientific and
Statistical Committee (SSC), Highly Migratory Species Advisory Subpanel
(HMSAS), and any other committee established by the Council.
Fishing trip is a period of time between landings when fishing is
conducted.
Fishing year is the year beginning at 0801 GMT (0001 local time) on
April 1 and ending at 0800 GMT on March 31 (2400 local time on
September 30) of the following year.
Fishery management area means the U.S. EEZ off the coasts of
Washington, Oregon, and California between 3 and 200 nautical miles
offshore, and bounded on the north by the Provisional International
Boundary between the United States and Canada, and bounded on the south
by the International Boundary between the United States and Mexico.
Harvest guideline means a specified numerical harvest objective
that is not a quota. Attainment of a harvest guideline does not require
closure of a fishery.
Highly Migratory species (HMS) means species managed by the FMP,
specifically:
Billfish/Swordfish:
striped marlin (Tetrapturus audax)
swordfish (Xiphias gladius)
Sharks:
common thresher shark (Alopias vulpinus)
pelagic thresher shark (Alopias pelagicus)
bigeye thresher shark (Alopias superciliosus)
shortfin mako or bonito shark (Isurus oxyrinchus)
blue shark (Prionace glauca)
Tunas:
north Pacific albacore (Thunnus alalunga)
yellowfin tuna (Thunnus albacares)
bigeye tuna (Thunnus obesus)
skipjack tuna (Katsuwonus pelamis)
northern bluefin tuna (Thunnus orientalis)
Other:
dorado or dolphinfish (Coryphaena hippurus)
Highly Migratory Species Advisory Subpanel (HMSAS) means the
individuals comprised of members of the fishing industry and public
appointed by the Council to review proposed actions for managing highly
migratory species fisheries.
Highly Migratory Species Fishery Management Plan (FMP) means the
Fishery Management Plan for the U.S. West Coast Fisheries for Highly
Migratory Species developed by the Pacific Fishery Management Council
and approved by the Secretary and amendments to the FMP.
Highly Migratory Species Management Team (HMSMT) means the
individuals appointed by the Council to review, analyze, and develop
management measures for highly migratory species fisheries.
Incidental catch or incidental species means HMS caught while
fishing for the primary purpose of catching other species with gear not
authorized by the FMP.
Land or landing means offloading fish from a fishing vessel or
arriving in port to begin offloading fish or causing fish to be
offloaded from a fishing vessel.
Mesh size means the opening between opposing knots in a net.
Minimum mesh size means the smallest distance allowed between the
inside of one knot to the inside of the opposing knot when the mesh is
stretched, regardless of twine size.
Offloading means removing HMS from a vessel.
Permit holder means a permit owner.
Permit owner means a person who owns an HMS permit for a specific
vessel fishing with specific authorized fishing gear.
Person, as it applies to fishing conducted under this subpart,
means any individual, corporation, partnership, association or other
entity (whether or not organized or existing under the laws of any
state), and any Federal, state, or local government, or any entity of
any such government that is eligible to own a documented vessel under
the terms of 46 U.S.C. 12102(a).
Processing or to process means the preparation or packaging of HMS
to render it suitable for human consumption, industrial uses or long-
term storage, including, but not limited to, cooking, canning, smoking,
salting, drying, filleting, freezing, or rendering into meal or oil,
but does not mean heading and gutting unless additional preparation is
done.
Prohibited species means those species and species groups whose
retention is prohibited unless authorized by other applicable law (for
example, to allow for examination by an authorized observer or to
return tagged fish as specified by the tagging agency).
Quota means a specified numerical harvest objective, the attainment
(or expected attainment) of which causes closure of the fishery for
that species or species group.
Recreational fishing means fishing with authorized recreational
fishing gear for personal use only and not for sale, barter or trade of
all or any part of the catch.
Recreational charter vessel means a vessel that carries fee-paying
passengers for the purpose of recreational fishing.
Regional Administrator means the Administrator, Southwest Region,
NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or
a designee.
Special Agent-In-Charge (SAC) means the Special Agent-In-Charge,
NMFS, Office of Enforcement, Southwest Region, or a designee of the
Special Agent-In-Charge.
Sustainable Fisheries Division (SFD) means the Assistant Regional
Administrator for Sustainable Fisheries, Southwest Region, NMFS, or a
designee.
Transship means offloading or otherwise transferring HMS or
products thereof to a receiving vessel.
Vessel monitoring system unit (VMS unit) means the hardware and
software

[[Page 68848]]

equipment owned by NMFS, installed on vessels by NMFS, and required by
Sec. 660.712(d) to track and transmit the positions of fishing vessels.

Sec. 660.703 Management area.

The fishery management area for the regulation of fishing for HMS
comprises the waters of the U.S. EEZ as defined in Sec. 660.402 and the
high seas seaward of the U.S. EEZ to the extent persons fishing with
permits issued under this subpart are active in those areas.

Sec. 660.704 Vessel identification.

(a) Official number. Each fishing vessel subject to this subpart
must display its official number on the port and starboard sides of the
deckhouse or hull, and on an appropriate weather deck so as to be
visible from enforcement vessels and aircraft.
(b) Numerals. The official number must be affixed to each vessel
subject to this subpart in block Arabic numerals at least 14 inches
(35.56 cm) in height. Markings must be legible and of a color that
contrasts with the background.

Sec. 660.705 Prohibitions.

In addition to the general prohibitions specified in Sec. 600.725
of this chapter, it is unlawful for any person to do any of the
following:
(a) Fish for HMS in the U.S. EEZ off the Pacific coast without a
permit issued under Sec. 660.707 for the use of authorized commercial
fishing gear.
(b) Fish with gear in any closed area in which the use of such gear
is prohibited under this subpart.
(c) Land HMS at Pacific coast ports without a permit issued under
Sec. 600.707 for the use of authorized fishing gear.
(d) Sell HMS without an applicable commercial state fishery
license.
(e) When fishing for HMS, fail to return a prohibited species to
the sea immediately with a minimum of injury.
(f) Falsify or fail to affix and maintain vessel markings as
required by Sec. 660.704.
(g) Fish for HMS in violation of any terms or conditions attached
to an exempted fishing permit issued under Sec. 600.745 of this
chapter or by Sec. 660.718.
(h) When a directed fishery has been closed for a specific species,
take and retain, possess, or land that species after the closure date.
(i) Refuse to submit fishing gear or fish subject to such person's
control to inspection by an authorized officer, or to interfere with or
prevent, by any means, such an inspection.
(j) Falsify or fail to make and/or file any and all reports of
fishing, landing, or any other activity involving HMS, containing all
data, and in the exact manner, required by the applicable state law, as
specified in Sec. 660.708(b).
(k) Fail to carry aboard a vessel that vessel's permit issued under
Sec. 660.707 or exempted fishing permit issued under Sec. 660.718.
(l) Fail to carry a VMS unit as required under Sec. 660.712(d).
(m) Interfere with, tamper with, alter, damage, disable, or impede
the operation of a VMS unit or to attempt any of the same; or to move
or remove a VMS unit without the prior permission of the SAC.
(n) Make a false statement, oral or written, to an authorized
officer, regarding the use, operation, or maintenance of a VMS unit.
(o) Fish for, catch, or harvest HMS with longline gear without a
VMS unit on board the vessel after installation of the VMS unit by
NMFS.
(p) Possess HMS harvested with longline gear on board a vessel
without a VMS unit after NMFS has installed the VMS unit on that
vessel.
(q) Direct fishing effort toward the harvest of swordfish (Xiphias
gladius) using longline gear deployed west of 150[deg] W. long. and
north of the equator (0[deg] lat.) on a vessel registered for use of
longline gear in violation of Sec. 660.712(a)(2).
(r) Possess a light stick on board a longline vessel when fishing
west of 150[deg] W. long. and north of the equator (0[deg] lat.) in
violation of Sec. 660.712(a)(7)
(s) Possess more than 10 swordfish on board a longline vessel from
a fishing trip where any part of the trip included fishing west of
150[deg] W. long. and north of the equator (0[deg] lat.) in violation
of Sec. 660.712(a)(10).
(t) Interfere with, impede, delay, or prevent the installation,
maintenance, repair, inspection, or removal of a VMS unit.
(u) Interfere with, impede, delay, or prevent access to a VMS unit
by a NMFS observer.
(v) Connect or leave connected additional equipment to a VMS unit
without the prior approval of the SAC.
(w) Fish for HMS (including transshipping HMS) with a vessel
registered for use with longline gear within closed areas or by use of
unapproved gear configurations in violation of Sec. 660.712(a)(1),
(a)(2), (a)(4), (a)(5), (a)(6), (a)(8), or (a)(9).
(x) Fail to use a line setting machine or line shooter, with
weighted branch lines, to set the main longline when operating a vessel
that is registered for use of longline gear and equipped with
monofilament main longline, when making deep sets north of 23[deg] N.
lat. in violation of Sec. 660.712 (c)(1)(i) and (c)(1)(ii).
(y) Fail to employ basket-style longline gear such that the
mainline is deployed slack when operating a vessel registered for use
of longline gear north of 23[deg] N. lat. in violation of Sec.
660.712(c)(1)(iii).
(z) Fail to maintain and use blue dye to prepare thawed bait when
operating a vessel registered for use of longline gear that is fishing
north of 23[deg] N. lat., in violation of Sec. 660.712(c)(2) and
(c)(3).
(aa) Fail to retain, handle, and discharge fish, fish parts, and
spent bait strategically when operating a vessel registered for use of
longline gear that is fishing north of 23[deg] N. lat. in violation of
Sec. 660.712 (c)(4) through (c)(7).
(bb) Fail to handle short-tailed albatrosses that are caught by
pelagic longline gear in a manner that maximizes the probability of
their long-term survival, in violation of Sec. 660.712(c)(8).
(cc) Fail to handle seabirds other than short-tailed albatross that
are caught by pelagic longline gear in a manner that maximizes the
probability of their long-term survival in violation of Sec.
660.712(c)(9).
(dd) Own a longline vessel registered for use of longline gear that
is engaged in longline fishing for HMS without a valid protected
species workshop certificate issued by NMFS or a legible copy thereof
in violation of Sec. 660.712(e)(3).
(ee) Fish for HMS on a vessel registered for use of longline gear
without having on board a valid protected species workshop certificate
issued by NMFS or a legible copy thereof in violation of Sec.
660.712(e).
(ff) Fail to carry line clippers, dip nets, and wire or bolt
cutters on a vessel registered for use as a longline vessel in
violation of Sec. 660.712(b).
(gg) Fail to comply with sea turtle handling, resuscitation, and
release requirements specified in Sec. 660.712(b)(4) through (7) when
operating a vessel.
(hh) Fail to comply with seabird take mitigation or handling
techniques required under Sec. 660.712(c)
(ii) Fish for HMS with a vessel registered for use as a longline
vessel without being certified by NMFS for completion of an annual
protected species workshop as required under Sec. 660.712(e).

Sec. 660.706 Pacific Coast Treaty Indian rights.

(a) Pacific Coast treaty Indian tribes have treaty rights to
harvest HMS in their usual and accustomed (u&a) fishing areas in U.S.
waters.

[[Page 68849]]

(b) Pacific Coast treaty Indian tribes means the Hoh, Makah, and
Quileute Indian Tribes and the Quinault Indian Nation.
(c) The NMFS recognizes the areas set forth below as marine u&a
fishing grounds of the four Washington coastal tribes. The Makah u&a
grounds were adjudicated in U.S. v. Washington, 626 F.Supp. 1405, 1466
(W.D. Wash. 1985), affirmed 730 F.2d 1314 (9th Cir. 1984). The u&a
grounds of the Quileute, Hoh, and Quinault tribes have been recognized
administratively by NMFS. See, e.g., 64 FR 24087 (May 5, 1999) (u&a
grounds for groundfish); 50 CFR 300.64(i) (u&a grounds for halibut).
The u&a grounds recognized by NMFS may be revised as ordered by a
Federal court.
(d) Procedures. The rights referred to in paragraph (a) of this
section will be implemented by the Secretary of Commerce, after
consideration of the tribal request, the recommendation of the Council,
and the comments of the public. The rights will be implemented either
through an allocation of fish that will be managed by the tribes, or
through regulations that will apply specifically to the tribal
fisheries. An allocation or a regulation specific to the tribes shall
be initiated by a written request from a Pacific Coast treaty Indian
tribe to the NMFS Northwest Regional Administrator, at least 120 days
prior to the time the allocation is desired to be effective, and will
be subject to public review through the Council process. The Secretary
recognizes the sovereign status and co-manager role of Indian tribes
over shared Federal and tribal fishery resources. Accordingly, the
Secretary will develop tribal allocations and regulations in
consultation with the affected tribe(s) and, insofar as possible, with
tribal consensus.
(e) Identification. A valid treaty Indian identification card
issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence
that the holder is a member of the Pacific Coast treaty Indian tribe
named on the card.
(f) Fishing (on a tribal allocation or under a Federal regulation
applicable to tribal fisheries) by a member of a Pacific Coast treaty
Indian tribe within that tribe's usual and accustomed fishing area is
not subject to provisions of the HMS regulations applicable to non-
treaty fisheries.
(g) Any member of a Pacific Coast treaty Indian tribe must comply
with any applicable Federal and tribal laws and regulations, when
participating in a tribal HMS fishery implemented under paragraph (d)
above.
(h) Fishing by a member of a Pacific Coast treaty Indian tribe
outside that tribe's usual and accustomed fishing area, or for a
species of HMS not covered by a treaty allocation or applicable Federal
regulation, is subject to the HMS regulations applicable to non-treaty
fisheries.

Sec. 660.707 Permits.

(a) General. This section applies to fishing for HMS off, or
landing HMS in, the States of California, Oregon, and Washington.
(1) By January 1, 2005, a commercial fishing vessel or a
recreational charter vessel of the United States must be registered for
use under a HMS permit if that vessel is used:
(i) To engage in commercial fishing for HMS in the U.S. EEZ off the
States of California, Oregon, and Washington;
(ii) To carry passengers for hire on a trip to engage in
recreational fishing; or
(iii) To land or transship HMS shoreward of the outer boundary of
the U.S. EEZ off the States of California, Oregon, and Washington.
(2) The permit must be on board the vessel and available for
inspection by an authorized officer, except that if the permit was
issued while the vessel was at sea, this requirement applies only to
any subsequent trip.
(3) A permit is valid only for the vessel for which it is
registered. A permit not registered for use with a particular vessel
may not be used.
(4) A permit is valid only for the gear type for which an
endorsement has been issued for that permit.
(5) Only a person eligible to own a documented vessel under the
terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or
otherwise) an HMS permit with an endorsement for use of gear for
commercial fishing.
(b) Application. (1) Following publication of the final rule
implementing the FMP, NMFS will issue permits to the owners of those
vessels on a list of vessels obtained from owners previously applying
for a permit under the authority of the High Seas Fishing Compliance
Act (HSFCA), the Tuna Conventions Act of 1950, and Sec. 660.21(a) of
this part.
(2) All permits issued by NMFS in accordance with paragraph (b)(1)
of this section will be issued by [date 60 days following effective
date of final rule] and for commercial fishing vessels will authorize
the use of specific fishing gear.
(3) Beginning on [date 60 days following effective date of final
rule], any vessel owner who has not received an HMS permit but who
wishes to have such a permit may apply to the SFD for a permit to fish
for HMS off the coasts of California, Oregon, and Washington by
obtaining a Southwest Region Federal Fisheries application form from
the SFD and submitting a completed application. A completed application
is one that contains all the necessary information and signatures
required. A copy of the application may be obtained at http://swr.nmfs.noaa.gov/permits.htm
.
(4) A minimum of 15 business days should be allowed for SFD to
process a permit application. If an incomplete or improperly completed
application is filed, the applicant will be sent a notice of
deficiency. If the applicant fails to correct the deficiency within 30
days following the date of notification, the application will be
considered abandoned.
(5) Permits issued under this subpart will remain valid for 5 years
unless revoked or suspended.
(6) SFD will issue replacement permits without charge to replace
lost or mutilated permits. An application for a replacement permit is
not considered a new application.
(7) Any permit that has been altered, erased, or mutilated is
invalid.
(c) Display. A permit issued under this subpart is required to land
HMS in any port of California, Oregon and Washington. Any permit issued
under this subpart, or a facsimile of the permit, must be on board the
vessel at all times while the vessel is fishing for, taking, retaining,
possessing, or landing HMS taken when fishing under the permit. Any
permit issued under this section must be displayed for inspection upon
request of an authorized officer.
(d) Sanctions. Procedures governing sanctions and denials are found
at subpart D of 15 CFR part 904.

Sec. 660.708 Reporting and recordkeeping.

(a) Logbooks. The operator of any commercial fishing vessel and any
recreational charter vessel fishing for HMS in the management area must
maintain on board the vessel an accurate and complete record of catch,
effort, and other data on logbook report forms provided by the Regional
Administrator, or by a state agency that has entered into an agreement
with the Regional Administrator. All information specified on the
form(s) must be recorded on the forms within 24 hours after the
completion of each fishing day. The original logbook form for each day
of the fishing trip must be submitted to either the Regional
Administrator or the appropriate state management agency within 30 days
of each landing or transhipment of HMS. Each form must be signed and
dated by the fishing vessel operator.

[[Page 68850]]

(1) Logbooks acceptable to meeting the reporting requirements of
this section may be found at http://swr.nmfs.noaa.gov/logbooks.htm, and
may include:
(i) The logbook required under Sec. 300.21 implementing the Tuna
Conventions Act of 1950;
(ii) The logbook required under Sec. 660.14 implementing the
Fishery Management Plan for the Pelagic Fisheries of the Western
Pacific Region;
(iii) The logbook required by Sec. 300.17 implementing the High
Seas Fishing Compliance Act of 1995.
(iv) Any logbook required by the fishery management agency of the
States of California, Oregon, or Washington.
(2) Any holder of a permit who does not maintain and submit a
logbook for a fishing trip under any of the above authorities must
obtain a copy of the appropriate logbook from the SFD and maintain and
submit the form provided by SFD.
(3) The Regional Administrator may, after consultation with the
Council, initiate rulemaking to modify the information to be provided
on the fishing logbook forms.
(b) Any person who is required to do so by the applicable state law
must make and/or file, retain, or make available any and all reports of
HMS containing all data, and in the exact manner, required by the
applicable state law.

Sec. 660.709 Annual specifications.

(a) Procedure. (1) In June of each year, the HMSMT will deliver a
preliminary SAFE report to the Council for all HMS with any necessary
recommendations for harvest guidelines, quotas or other management
measures to protect HMS.
(2) In September of each year, the HMSMT will deliver a final SAFE
report to the Council. The Council will adopt any necessary harvest
guidelines, quotas or other management measures for public review.
(3) In November each year, the Council will take final action to
propose any necessary harvest guidelines, quotas, or other management
measures and make its recommendations to NMFS. The proposal shall
include description of the purpose of the specifications and analyze
the impacts of implementing such specifications.
(4) The Regional Administrator will implement through rulemaking
any necessary and appropriate harvest guidelines, quotas, or other
management measures based on the SAFE report, recommendations from the
Council, and the requirements contained in the FMP.
(b) Fishing seasons for all species will begin on April 1 of each
year at 0001 hours local time and terminate at 2400 hours local time on
March 31 of each subsequent year.
(c) Harvest guidelines, quotas, and other management measures
announced for a particular year will remain in effect the following
year unless changed through the public review process described in
paragraph (a) of this section.
(d) Irrespective of the normal review process, the Council may
recommend management action to conserve and manage the fisheries at any
time. The Council may adopt a management cycle different from the one
described in this section provided that such change is made by a
majority vote of the Council and a 6-month notice of the change is
given. To the extent such recommendations are found necessary and
reasonable, NMFS will implement them through rulemaking.

Sec. 660.710 Closure of directed fishery.

(a) When a quota has been taken, the Regional Administrator will
announce in the Federal Register the date of closure of the fishery for
the species of concern.
(b) When a harvest guideline has been taken, the Regional
Administrator will initiate review of the species of concern according
to section 8.4.8 of the FMP and publish in the Federal Register any
necessary and appropriate regulations following Council
recommendations.

Sec. 660.711 General catch restrictions.

(a) Prohibited species. HMS under the FMP for which quotas have
been achieved and the fishery closed are prohibited species. In
addition, the following are prohibited species:
(1) Any species of salmon
(2) Great white shark
(3) Basking shark
(4) Megamouth shark
(5) Pacific halibut
(b) Incidental landings. HMS caught by gear not authorized by this
subpart may be landed in incidental amounts as follows:
(1) Drift gillnet vessels with stretched mesh less than 14 inches
may land up to 10 HMS per trip, except that no swordfish may be landed.
(2) Bottom longline vessels may land up to 20 percent by weight of
management unit sharks in landings of all species or 3 management unit
sharks, whichever is greater.
(3) Trawl and pot gear may land up to 1 percent by weight of
management unit sharks in a landing of all species or 2 management unit
sharks, whichever is greater.
(c) Marlin prohibition. The sale of striped marlin is prohibited.
(d) Sea turtle handling and resuscitation. All sea turtles taken
incidentally in fishing operations by any HMS vessel must be handled in
accordance with 50 CFR part 223.206(d)(1).

Sec. 660.712 Longline fishery.

(a) Gear and fishing restrictions. (1) Owners and operators of
vessels registered for use of longline gear may not use longline gear
to fish for or target HMS within the U.S. EEZ.
(2) Owners and operators of vessels registered for use of longline
gear may not use longline gear to fish for or target swordfish (Xiphias
gladius) west of 150[deg] W. long. and north of the equator (0[deg] N.
lat.).
(3) A person aboard a vessel registered for use of longline gear
fishing for HMS west of 150[deg] W. long. and north of the equator
(0[deg] N. lat.) may not possess or deploy any float line that is
shorter than or equal to 20 m (65.6 ft or 10.9 fm). As used in this
paragraph, float line means a line used to suspend the main longline
beneath a float.
(4) From April 1 through May 31, owners and operators of vessels
registered for use of longline gear may not use longline gear in waters
bounded on the south by 0[deg] lat., on the north by 15[deg] N. lat.,
on the east by 145[deg] W. long., and on the west by 180[deg] long.
(5) From April 1 through May 31, owners and operators of vessels
registered for use of longline gear may not receive from another vessel
HMS that were harvested by longline gear in waters bounded on the south
by 0[deg] lat., on the north by 15[deg] N. lat., on the east by
145[deg] W. long., and on the west by 180[deg] long.
(6) From April 1 through May 31, owners and operators of vessels
registered for use of longline gear may not land or transship HMS that
were harvested by longline gear in waters bounded on the south by
0[deg] lat., on the north by 15[deg] N. lat., on the east by 145[deg]
W. long., and on the west by 180[deg] long.
(7) No light stick may be possessed on board a vessel registered
for use of longline gear during fishing trips that include any fishing
west of 150[deg] W. long. and north of the equator (0[deg] N. lat.). A
light stick as used in this paragraph is any type of light emitting
device, including any flourescent glow bead, chemical, or electrically
powered light that is affixed underwater to the longline gear.
(8) When a conventional monofilament longline is deployed in waters
west of 150[deg] W. long. and north of the equator (0[deg] N. lat.) by
a vessel registered for use of longline gear, no fewer than 15 branch
lines may be set

[[Page 68851]]

between any two floats. Vessel operators using basket-style longline
gear must set a minimum of 10 branch lines between any 2 floats when
fishing in waters north of the equator.
(9) Longline gear deployed west of 150[deg] W. long. and north of
the equator (0[deg] N. lat.) by a vessel registered for use of longline
gear must be deployed such that the deepest point of the main longline
between any two floats, i.e., the deepest point in each sag of the main
line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the
sea surface.
(10) Owners and operators of longline vessels registered for use of
longline gear may land or posses no more than 10 swordfish from a
fishing trip where any part of the trip included fishing west of
150[deg] W. long. and north of the equator (0[deg] N. lat.).
(b) Sea turtle take mitigation measures. (1) Owners and operators
of vessels registered for use of longline gear must carry aboard their
vessels line clippers meeting the minimum design standards specified in
(b)(2) of this section, dip nets meeting minimum standards specified in
(b)(3) of this section, and wire or bolt cutters capable of cutting
through the vessel's hooks. These items must be used to disengage any
hooked or entangled sea turtles with the least harm possible to the sea
turtles and as close to the hook as possible in accordance with the
requirements specified in (b)(4) through (b)(6) of this section.
(2) Line clippers are intended to cut fishing line as close as
possible to hooked or entangled sea turtles. NMFS has established
minimum design standards for line clippers. The Arceneaux line clipper
(ALC) is a model line clipper that meets these minimum design standards
and may be fabricated from readily available and low-cost materials
(see figure 1 of this subpart). The minimum design standards are as
follows:
(i) The cutting blade must be curved, recessed, contained in a
holder, or otherwise afforded some protection to minimize direct
contact of the cutting surface with sea turtles or users of the cutting
blade.
(ii) The blade must be capable of cutting 2.0-2.1 mm monofilament
line and nylon or polypropylene multistrand material commonly known as
braided mainline or tarred mainline.
(iii) The line clipper must have an extended reach handle or pole
of at least 6 ft (1.82 m).
(iv) The cutting blade must be securely fastened to the extended
reach handle or pole to ensure effective deployment and use.
(3) Dip nets are intended to facilitate safe handling of sea
turtles and access to sea turtles for purposes of cutting lines in a
manner that minimizes injury and trauma to sea turtles. The minimum
design standards for dip nets that meet the requirements of this
section are:
(i) The dip net must have an extended reach handle of at least 6 ft
(1.82 m) of wood or other rigid material able to support a minimum of
100 lbs (34.1 kg) without breaking or significant bending or
distortion.
(ii) The dip net must have a net hoop of at least 31 inches (78.74
cm) inside diameter and a bag depth of at least 38 inches (96.52 cm).
The bag mesh openings may be no more than 3 inches x 3 inches (7.62 cm
x 7.62 cm).
(4) All incidentally taken sea turtles brought aboard for dehooking
and/or disentanglement must be handled in a manner to minimize injury
and promote post-hooking survival.
(i) When practicable, comatose sea turtles must be brought on board
immediately, with a minimum of injury, and handled in accordance with
the procedures specified in paragraphs (b)(5) and (b)(6) of this
section.
(ii) If a sea turtle is too large or hooked in such a manner as to
preclude safe boarding without causing further damage/injury to the
turtle, line clippers described in paragraph (b)(2) of this section
must be used to clip the line and remove as much line as possible prior
to releasing the turtle.
(iii) If a sea turtle is observed to be hooked or entangled by
longline gear during hauling operations, the vessel operator must
immediately cease hauling operations until the turtle has been removed
from the longline gear or brought on board the vessel.
(iv) Hooks must be removed from sea turtles as quickly and
carefully as possible. If a hook cannot be removed from a turtle, the
line must be cut as close to the hook as possible.
(5) If the sea turtle brought aboard appears dead or comatose, the
sea turtle must be placed on its belly (on the bottom shell or
plastron) so that the turtle is right side up and its hindquarters
elevated at least 6 inches (15.24 cm) for a period of no less than 4
hours and no more than 24 hours. The amount of the elevation depends on
the size of the turtle; greater elevations are needed for larger
turtles. A reflex test, performed by gently touching the eye and
pinching the tail of a sea turtle, must be administered by a vessel
operator, at least every 3 hours, to determine if the sea turtle is
responsive. Sea turtles being resuscitated must be shaded and kept damp
or moist but under no circumstance may be placed into a container
holding water. A water-soaked towel placed over the eyes, carapace, and
flippers is the most effective method to keep a turtle moist. Those
that revive and become active must be returned to the sea in the manner
described in paragraph (b)(6) of this section. Sea turtles that fail to
revive within the 24-hour period must also be returned to the sea in
the manner described in paragraph (b)(6)(i) of this section.
(6) Live turtles must be returned to the sea after handling
in accordance with the requirements of paragraphs (b)(4) and (b)(5)
of this section:
(i) By putting the vessel engine in neutral gear so that the
propeller is disengaged and the vessel is stopped, and releasing
the turtle away from deployed gear; and
(ii) Observing that the turtle is safely away from the vessel
before engaging the propeller and continuing operations.
(7) In addition to the requirements in paragraphs (b) and (c) of
this section, a vessel operator shall perform sea turtle handling and
resuscitation techniques consistent with Sec. 223.206(d)(1) of this
title, as appropriate.
(c) Longline seabird mitigation measures. (1) Seabird mitigation
techniques. Owners and operators of vessels registered for use of
longline gear must ensure that the following actions are taken when
fishing north of 23[deg] N. lat.:
(i) Employ a line setting machine or line shooter to set the main
longline when making deep sets west of 150[deg] W. long. using
monofilament main longline;
(ii) Attach a weight of at least 45 g to each branch line within 1
m of the hook when making deep sets using monofilament main longline;
(iii) When using basket-style longline gear, ensure that the main
longline is deployed slack to maximize its sink rate;
(2) Use completely thawed bait that has been dyed blue to an
intensity level specified by a color quality control card issued by
NMFS;
(3) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb
size) containing blue dye on board the vessel;
(4) 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;
(5) 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 (a)(6) of
this section;

[[Page 68852]]

(6) Remove all hooks from fish, fish parts, or spent bait prior to
its discharge in accordance with paragraph (c)(4) of this section; and
(7) 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 (a)(6) of this section.
(8) If a short-tailed albatross is hooked or entangled by a vessel
registered for use of longline gear, owners and operators must ensure
that the following actions are taken:
(i) Stop the vessel to reduce the tension on the line and bring the
bird on board the vessel using a dip net;
(ii) Cover the bird with a towel to protect its feathers from oils
or damage while being handled;
(iii) Remove any entangled lines from the bird;
(iv) Determine if the bird is alive or dead.
(A) If dead, freeze the bird immediately with an identification tag
attached directly to the specimen listing the species, location and
date of mortality, and band number if the bird has a leg band. Attach a
duplicate identification tag to the bag or container holding the bird.
Any leg bands present must remain on the bird. Contact NMFS, the Coast
Guard, or the U.S. Fish and Wildlife Service at the numbers listed on
the Short-tailed Albatross Handling Placard distributed at the NMFS
protected species workshop, inform them that you have a dead short-
tailed albatross on board, and submit the bird to NMFS within 72 hours
following completion of the fishing trip.
(B) If alive, handle the bird in accordance with paragraphs
(c)(8)(iv)(C) through (J) of this section.
(C) Place the bird in a safe enclosed place;
(D) Immediately contact NMFS, the Coast Guard, or the U.S. Fish and
Wildlife Service at the numbers listed on the Short-tailed Albatross
Handling Placard distributed at the NMFS protected species workshop and
request veterinary guidance;
(E) Follow the veterinary guidance regarding the handling and
release of the bird.
(F) Complete the short-tailed albatross recovery data form issued
by NMFS.
(G) If the bird is externally hooked and no veterinary guidance is
received within 24-48 hours, handle the bird in accordance with
paragraphs (c)(17)(iv) and (v) of this section, and release the bird
only if it meets the following criteria:
(1) Able to hold its head erect and respond to noise and motion
stimuli;
(2) Able to breathe without noise;
(3) Capable of flapping and retracting both wings to normal folded
position on its back;
(4) Able to stand on both feet with toes pointed forward; and
(5) Feathers are dry.
(H) If released under paragraph (G) of this section or under the
guidance of a veterinarian, all released birds must be placed on the
sea surface.
(I) If the hook has been ingested or is inaccessible, keep the bird
in a safe, enclosed place and submit it to NMFS immediately upon the
vessel's return to port. Do not give the bird food or water.
(J) Complete the short-tailed albatross recovery data form issued
by NMFS.
(9) If a seabird other than a short-tailed albatross is hooked or
entangled by a vessel registered for use of longline gear, owners and
operators must ensure that the following actions are taken:
(i) Stop the vessel to reduce the tension on the line and bring the
seabird on board the vessel using a dip net;
(ii) Cover the seabird with a towel to protect its feathers from
oils or damage while being handled;
(iii) Remove any entangled lines from the seabird;
(iv) Remove any external hooks by cutting the line as close as
possible to the hook, pushing the hook barb out point first, cutting
off the hook barb using bolt cutters, and then removing the hook shank;
(v) Cut the fishing line as close as possible to ingested or
inaccessible hooks;
(vi) Leave the bird in a safe enclosed space to recover until its
feathers are dry; and
(vii) After recovered, release seabirds by placing them on the sea
surface.
(d) Vessel monitoring system. (1) Only a VMS unit owned by NMFS and
installed by NMFS
complies with the requirement of this subpart.
(2) After the holder of a permit to use longline gear has been
notified by the SAC of a specific date for installation of a VMS unit
on the permit holder's vessel, the vessel must carry the VMS unit after
the date scheduled for installation.
(3) During the experimental VMS program, a longline permit holder
shall not be assessed any fee or other charges to obtain and use a VMS
unit, including the communication charges related directly to
requirements under this section. Communication charges related to any
additional equipment attached to the VMS unit by the owner or operator
shall be the responsibility of the owner or operator and not NMFS.
(4) The holder of a longline permit and the master of the vessel
operating under the permit must:
(i) Provide opportunity for the SAC to install and make operational
a VMS unit after notification.
(ii) Carry the VMS unit on board whenever the vessel is at sea.
(iii) Not remove or relocate the VMS unit without prior approval
from the SAC.
(5) The SAC has authority over the installation and operation of
the VMS unit. The SAC may authorize the connection or order the
disconnection of additional equipment, including a computer, to any VMS
unit when deemed appropriate by the SAC.
(e) Protected species workshop. (1) Each year both the owner and
the operator of a vessel registered for use of longline gear 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.
(2) A protected species workshop certificate will be issued by NMFS
annually to any person who has completed the workshop.
(3) An owner of a vessel registered for use of longline gear must
have on file a valid protected species workshop certificate or copy
issued by NMFS in order to maintain or renew their vessel registration.
(4) An operator of a vessel registered for use of longline gear
must have on board the vessel a valid protected species workshop
certificate issued by NMFS or a legible copy thereof.

Sec. 660.713 Drift gillnet fishery.

(a) Take reduction plan gear restrictions. Gear restrictions
implementing the Pacific Offshore Cetacean Take Reduction Plan under
the authority of the Marine Mammal Protection Act of 1972 remain in
effect and can be found at 50 CFR 229.31.
(b) Other gear restrictions. (1) The maximum length of a drift
gillnet on board a vessel shall not exceed 6,000 ft (1,828.8 m).
(2) Up to 1,500 ft (457.2 m) of drift gillnet in separate panels of
600 ft (182.9 m) may be on board the vessel in a storage area.
(c) Protected Resource Area Closures. (1) No person may fish with,
set, or haul back drift gillnet gear in U.S. waters of the Pacific
Ocean from August 15 through November 15 in the area bounded by
straight lines connecting the following coordinates in the order listed
(see figure 3 of this section):
(i) Pt. Sur at 36[deg] 18.5' N. lat.;
(ii) 34[deg] 27' N. lat. 123[deg] 35' W. long.;

[[Page 68853]]

(iii) 34[deg] 27' N. lat. 129[deg] W. long.;
(iv) 45[deg] N. lat. 129[deg] W. long.; and
(v) the point where 45[deg] N. lat. intersects the Oregon coast.
(2) No person may fish with, set, or haul back drift gillnet gear
in U.S. waters of the Pacific Ocean south of 34o 27' N. lat. (Pt.
Conception) and east of 120[deg] W. long. from January 1 through
January 31 and from August 15 through August 31 during a forecasted or
occurring El Nino event.
(i) The Assistant Administrator will publish a notification in the
Federal Register that an El Nino event is occurring off, or is forecast
for off, the coast of southern California and the requirement for time
area closures in the Pacific loggerhead conservation zone. The
notification will also be announced in summary form by other methods as
the Assistant Administrator determines necessary and appropriate to
provide notice to the California/Oregon drift gillnet fishery.
(ii) The Assistant Administrator will rely on information developed
by NOAA offices that monitor El Nino events, such as NOAA's Coast Watch
program, and developed by the State of California, to determine if such
a notice should be published. The requirement for the area closures
from January 1 through January 31 and from August 15 through August 31
will remain effective until the Assistant Administrator issues a notice
that the El Nino event is no longer occurring.
(d) Mainland area closures. The following areas off the Pacific
coast are closed to driftnet gear:
(1) Within the U.S. EEZ from the United States-Mexico International
Boundary to the California-Oregon border from February 1 through April
30.
(2) In the portion of the U.S. EEZ within 75 nautical miles from
the mainland shore from the United States-Mexico International Boundary
to the California-Oregon border from May 1 through August 14.
(3) In the portion of the U.S. EEZ within 25 miles of the coastline
from December 15 through January 31 of the following year from the
United States-Mexico International Boundary to the California-Oregon
border.
(4) In the portion of the U.S. EEZ from August 15 through September
30 within the area bounded by line extending from Dana Point to Church
Rock on Santa Catalina Island, to Point La Jolla.
(5) In the portion of the U.S. EEZ within 12 nautical miles from
the mainland shore north of a line extending west of Point Arguello to
the California-Oregon border.
(6) In the portion of the U.S. EEZ within the area bounded by a
line from the lighthouse at Point Reyes, California to Noonday Rock, to
Southeast Farallon Island to Pillar Point.
(7) In the portion of the U.S. EEZ off the Oregon coast east of a
line approximating 1000 fathoms as defined by the following
coordinates:
42[deg] 00' 00'' N. lat. 125[deg] 10' 30'' W. long.
42[deg] 25' 39'' N. lat. 124[deg] 59' 09'' W. long.
42[deg] 30' 42'' N. lat. 125[deg] 00' 46'' W. long.
42[deg] 30' 23'' N. lat. 125[deg] 04' 14'' W. long.
43[deg] 02' 56'' N. lat. 125[deg] 06' 57'' W. long.
43[deg] 01' 29'' N. lat. 125[deg] 10' 55'' W. long.
43[deg] 50' 11'' N. lat. 125[deg] 19' 14'' W. long.
44[deg] 03''23'' N. lat. 125[deg] 12' 22'' W. long.
45[deg] 00' 06'' N. lat. 125[deg] 16' 42'' W. long.
45[deg] 25' 27'' N. lat. 125[deg] 16' 29'' W. long.
45[deg] 45' 37'' N. lat. 125[deg] 15' 19'' W. long.
46[deg] 04' 45'' N. lat. 125[deg] 24' 41'' W. long.
46[deg] 16' 00'' N. lat. 125[deg] 20' 32'' W. long.
(8) In the portion of the U.S. EEZ north of 46[deg] 16' N. latitude
(Washington coast).
(e) Channel Islands area closures. The following areas off the
Channel Islands are closed to driftnet gear:
(1) San Miguel Island closures. (i) Within the portion of the U.S.
EEZ north of San Miguel Island between a line extending 6 nautical
miles west of Point Bennett and a line extending 6 nautical miles east
of Cardwell Point.
(ii) Within the portion of the U.S. EEZ south of San Miguel Island
between a line extending 10 nautical miles west of Point Bennett and a
line extending 10 nautical miles east of Cardwell Point.
(2) Santa Rosa Island closure. Within the portion of the U.S. EEZ
north of San Miguel Island between a line extending 6 nautical miles
west from Sandy Point and a line extending 6 nautical miles east of
Skunk Point from May 1 through July 31.
(3) San Nicolas Island closure. In the portion of the U.S. EEZ
within a radius of 10 nautical miles of 33[deg] 16' 41'' N. lat.,
119[deg] 34' 39'' W. long. (west end) from May 1 through July 31.
(4) San Clemente Island closure. In the portion of the U.S. EEZ
within 6 nautical miles of the coastline on the easterly side of San
Clemente Island within a line extending 6 nautical miles west from
33[deg] 02' 16'' N. lat., 118[deg] 35' 27'' W. long. and a line
extending 6 nautical miles east from the light at Pyramid Head.

Sec. 660.714 Purse seine. [Reserved]

Sec. 660.715 Harpoon. [Reserved]

Sec. 660.716 Surface hook-and-line. [Reserved]

Sec. 660.717 Framework for revising regulations.

(a) General. NMFS will establish and adjust specifications and
management measures in accordance with procedures and standards in the
FMP.
(b) Annual actions. Annual specifications are developed and
implemented according to Sec. 660.709.
(c) Routine management measures. Consistent with section 3.4 of the
FMP, management measures designated as routine may be adjusted during
the year after recommendation from the Council, approval by NMFS, and
publication in the Federal Register.
(d) Changes to the regulations. Regulations under this subpart may
be promulgated, removed, or revised. Any such action will be made
according to the framework measures in section 8.3.4 of the FMP and
will be published in the Federal Register.

Sec. 660.718 Exempted fishing.

(a) In the interest of developing an efficient and productive
fishery for HMS, the Regional Administrator may issue exempted fishing
permits for the harvest of HMS in a manner or at times or places that
otherwise would be prohibited.
(b) No exempted fishing for HMS may be conducted unless authorized
by an EFP issued for the participating vessel in accordance with the
criteria and procedures specified in Sec. 600.745 of this chapter.

Sec. 660.719 Scientific observers.

(a) All fishing vessels operating in HMS fisheries, including
catcher/processors, at-sea processors, and vessels that harvest in
Washington, Oregon, or California and land catch in another area, may
be required to accommodate NMFS certified observers on board to collect
scientific data. Any observer program will be implemented in accordance
with the procedures at Sec. 660.717.
(b) All vessels with observers on board must comply with the safety
regulations at 50 CFR 600.746.
(c) NMFS shall advise the permit holder or the designated agent of
any observer requirement at least 24 hours (not including weekends and
Federal holidays) before any trip.

[[Page 68854]]

(d) When NMFS notifies the permit holder or designated agent of the
obligation to carry an observer in response to a notification under
this subpart or as a condition of an EFP issued under 50 CFR 660.718,
the vessel may not engage in the fishery without taking the observer.
(e) A permit holder must accommodate a NMFS observer assigned under
these regulations. The Regional Administrator's office, and not the
observer, will address any concerns raised over accommodations.
(f) The permit holder, vessel operator, and crew must cooperate
with the observer in the performance of the observer's duties,
including:
(1) Allowing for the embarking and debarking of the observer.
(2) Allowing the observer access to all areas of the vessel
necessary to conduct observer duties.
(3) Allowing the observer access to communications equipment and
navigation equipment as necessary to perform observer duties.
(4) Allowing the observer access to VMS units to verify operation,
obtain data, and use the communication capabilities of the units for
official purposes.
(5) Providing accurate vessel locations by latitude and longitude
or loran coordinates, upon request by the observer.
(6) Providing sea turtle, marine mammal, or sea bird specimens as
requested.
(7) Notifying the observer in a timely fashion when commercial
fishing operations are to begin and end.
(g) The permit holder, operator, and crew must comply with other
terms and conditions to ensure the effective deployment and use of
observers that the Regional Administrator imposes by written notice.
(h) The permit holder must ensure that assigned observers are
provided living quarters comparable to crew members and are provided
the same meals, snacks, and amenities as are normally provided to other
vessel personnel.
[FR Doc. 03-30486 Filed 12-9-03; 8:45 am]

BILLING CODE 3510-22-S