[Federal Register: July 13, 2005 (Volume 70, Number 133)]
[Proposed Rules]
[Page 40302-40305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy05-37]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 050620162-5162-01; I.D. 061505D]
RIN 0648-AS30
Fisheries off West Coast States and in the Western Pacific;
Pelagic Fisheries; Additional Measures to Reduce the Incidental Catch
of Seabirds in the Hawaii Pelagic Longline Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would require all Hawaii-based longline
fishing vessels to either side-set (set longline gear from the side of
the vessel rather than from the stern), or use a combination of other
seabird mitigation measures to prevent seabirds, e.g., Laysan and
black-footed albatrosses, from being accidentally hooked or entangled,
and killed during fishing operations. This proposed rule is also
intended to reduce the potential for interaction with endangered short-
tailed albatrosses that are known to be in the area in which the
fishery operates.
DATES: Comments on the proposed rule must be received in writing by
August 12, 2005.
ADDRESSES: You may submit comments on this proposed rule or its Initial
Regulatory Flexibility Analysis (IRFA), identified by 0648-AS30 by any
of the following methods:
E-mail: AS30-Seabirds@noaa.gov. Include in the subject
line of the e-mail comment the following document identifier: Seabird
Measures. Comments sent via e-mail, including all attachments, must not
exceed a 10 megabyte file size.
Federal e-Rulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: William L. Robinson, Administrator, NMFS, Pacific
Islands Region (PIR), 1601 Kapiolani Boulevard, Suite 1110, Honolulu,
HI 96814.
Fax: 808-973-2941.
Copies of the regulatory amendment document (6 April 2005) entitled
``Additional Measures to Reduce the Incidental Catch of Seabirds in the
Hawaii-Based Longline Fishery'' (containing a Regulatory Impact Review
and IRFA) and Final Environmental Impact Statement (FEIS) prepared for
this action may be obtained from William L. Robinson (see ADDRESSES).
Requests should indicate whether paper copies or electronic copies on
CD-ROM are preferred. These documents are also available at the
following websites: www.wpcouncil.org and http://swr.nmfs.noaa.gov/pir.
FOR FURTHER INFORMATION CONTACT: Robert Harman, NMFS PIR, 808-973-2937.
SUPPLEMENTARY INFORMATION: Hawaii-based longline fishing vessels
inadvertently hook or entangle, and kill black-footed albatrosses
(Phoebastria nigripes) and Laysan albatrosses (Phoebastria immutabilis)
that nest in the Northwestern Hawaiian Islands (NWHI). Short-tailed
albatrosses (Phoebastria albatrus), an endangered species that nests
primarily on Tori Island off Japan and known to visit the NWHI, have
been sighted occasionally in the vicinity of Hawaii longline vessels
during fishing operations. However, there has been no confirmed report
of any interaction between the short-tailed albatross and Hawaii
longline fishery.
The Western Pacific Fishery Management Council (WPFMC) developed
and proposed seabird mitigation measures for Hawaii-based longline
vessels, but these were not finalized due to a Biological Opinion
issued late in 2000 by the U.S. Fish and Wildlife Service (USFWS 2000
Biological Opinion) under section 7 of the Endangered Species Act
(ESA). In mid-2001, NMFS implemented emergency seabird mitigation
measures (66 FR 31561, 12 June 2001) in accordance with the terms and
condition of the USFWS 2000 Biological Opinion on the short-tailed
albatross.
On May 14, 2002, NMFS published a final rule (67 FR 34408)
establishing permanent seabird mitigation measures recommended by the
WPFMC for the Hawaii longline fishery. That rule, which replaced the
2001 emergency interim rule, is the result of the WPFMC's continued
effort and commitment to minimize interactions between seabirds and the
Hawaii-based longline fishery. A description of the WPFMC's role and
ongoing actions in seabird mitigation in the western Pacific region is
contained in the regulatory amendment document entitled ``Additional
Measures to Reduce the Incidental Catch of Seabirds in the Hawaii-based
Longline Fishery'' (WPFMC, 6 April 2005, see ADDRESSES).
The May 2002 final rule required owners and operators of all
vessels registered for use with Hawaii longline limited access permits
and deploying longline gear north of 23[deg] N. latitude to use line-
setting machines (line shooters) with weighted branch lines, or use
basket-style longline gear, and to use thawed, blue-dyed bait and
strategic offal discards (which include fish, fish parts, or spent
bait) during the setting and hauling of longline gear. The owners and
operators of these vessels were also required to follow certain seabird
handling techniques, and annually complete a protected species
educational workshop on seabird mitigation conducted by NMFS.
Since 2000, the number of fishery interactions with all seabirds
was significantly reduced due to the closure of the shallow-set
(swordfish-directed) component of the Hawaii-based longline fishery.
This closure was implemented by NMFS to protect sea turtles via a
number of emergency actions (64 FR 72290, 27 December 1999; 65 FR
51992, 25 August 2000; 66 FR 15358, 19 March 2001) and a final rule (66
FR 31561, 12 June 2001).
Between 2002 and 2003, NMFS, WPFMC, and the fishing industry
collaborated in a series of research activities to test new seabird
deterrent methods for Hawaii longline vessels. The trials found that
underwater setting chutes (which deploy baited hooks underwater and out
of the reach of seabirds) and side-setting were both effective in
reducing interactions with seabirds. These and other seabird deterrent
strategies were analyzed and considered by the WPFMC as potential new
seabird mitigation methods to cost-effectively further reduce the
effects of the Hawaii longline fleet on seabirds.
In March 2004, in concert with the regulatory amendment to reopen
the swordfish component of the Hawaii longline fishery, NMFS and USFWS
reinitiated ESA section 7 consultations on the effect of the fishery on
the short-tailed albatross. During the consultation process, NMFS and
USFWS also held discussions with the Hawaii Longline Association and
WPFMC staff that included the consideration of
[[Page 40303]]
implementing side-setting and other effective mitigation measures by
NMFS under the Fishery Management Plan for the Pelagics Fisheries of
the Western Pacific Region (Pelagics FMP).
On April 2, 2004, NMFS published a final rule (69 FR 17329) that
reopened the shallow-set component of the Hawaii-based longline
fishery. In this fishery, longline gear is deployed (set) relatively
shallow, generally in the upper 100 m (328 ft) of the water column, by
fishing vessels that are targeting swordfish, compared to the deeper
longline sets targeting bigeye tuna. Shallow-set longline gear does
incidentally take sea turtles, such as leatherback and loggerhead
turtles, but this technique also poses a problem for seabirds. The
problem is acute when a longline vessel deploys fishing gear during the
early evening period when seabirds, such as Layman and black-footed
albatrosses, are foraging for food at sea and are attracted to the
baited hooks of the longline gear as it is being deployed. The April
2004 rule placed restrictions on the types of hook and bait that may be
used, annual fleet-wide limits on fishery interactions with leatherback
and loggerhead sea turtles, an annual fleet-wide limit on shallow-set
fishing effort (2,120 sets), and other sea turtle mitigation measures.
The rule also contained a seabird mitigation measure that required
Hawaii longline vessels, when making shallow sets north of 23[deg] N.
lat., to start and complete the deployment of longline gear (set and
haul) during the nighttime (specifically to set no earlier than one
hour after local sunset and to finish hauling no later than local
sunrise) to minimize interactions with seabirds.
At its meeting in June 2004, the WPFMC took initial action to
establish additional seabird mitigation measures based on the promising
results of the seabird mitigation studies conducted in 2002 and 2003.
Subsequently, at its October 2004 meeting, the WPFMC recommended that
NMFS amend the Pelagics FMP regulations to include the following
seabird conservation measures: (a) when fishing north of 23[deg] N.
lat., all deep-setting Hawaii longline vessels must either side-set, or
use a tori line system plus the currently required measures (line
shooter with weighted branch lines, blue-dyed thawed bait, and
strategic offal discards), with the requirement to use strategic offal
discards modified to require that vessel operators use them only when
seabirds are present; and (b) all shallow-setting Hawaii longline
vessels must either side-set, or use a tori line plus the currently
required measures (night setting, blue dyed thawed bait, and strategic
offal discards), wherever they fish, with the requirement to use
strategic offal discards modified to require that vessel operators use
them only when seabirds are present.
NMFS estimated that the Hawaii longline fleet hooked or entangled
2,320 albatrosses during 1999. In 2002 and 2003, when the shallow-set
component of the Hawaii-based longline fishery was closed due to sea
turtle bycatch, annual seabird interaction estimates fell to 113 and
257, respectively. Although the shallow-set longline fishery reopened
in 2004, NMFS projects that under a restricted fishery and with this
proposed rule the Hawaii longline fishing fleet will have approximately
six (6) interactions per year with black-footed and Laysan albatrosses.
Classification
NMFS prepared an Environmental Impact Statement for this regulatory
amendment. A Notice of Availability of the FEIS was published on 6 May
2005.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An IRFA was prepared that describes the economic impact that this
proposed rule, if adopted, would have on small entities. A description
of why the action is being considered, the objectives and legal basis
for the action, and a description of the action, may be found at the
beginning of this section. There are no recordkeeping or reporting
requirements proposed in this rule.
This proposed rule does not duplicate, overlap, or conflict with
any relevant Federal rules. All vessels are considered to be small
entities. Therefore, there are no economic impacts resulting from
disproportionality between large and small vessels. A summary of the
analysis follows.
Number of Affected Small Entities
The proposed rule would potentially apply to all holders of Hawaii
longline limited access permits. The number of Hawaii longline limited
access permits is 164. Not all such permits are renewed each year
(approximately 110 were renewed in 2003, and 122 in 2004), and of those
renewed, not all are used to participate in the Hawaii-based longline
fishery. In a few cases, multiple permits are held by a single
business, so the number of businesses to whom the rule would apply is
slightly smaller than the number of affected permit holders. All
holders of Hawaii longline limited access permits are small entities
(i.e., they are businesses that are independently owned and operated,
and have no more than $3.5 million in annual receipts). Therefore, the
number of entities to which the rule would potentially apply is
approximately 164.
Duplicating, Overlapping, and Conflicting Federal Rules
To the extent practicable, it has been determined that there are no
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
Alternatives to the Proposed Rule
A total of 25 alternatives were considered. Each alternative would
have applied one or more seabird deterrent strategies to the fishery
sectors (deep- or shallow-setting) and by area (north of 23[deg] N.
lat., south of 23[deg] N. lat., or all areas). Alternatives that would
have applied deterrent measures to both fishery sectors in all areas
were rejected as not being cost-effective, given that deep-setting
vessels south of 23[deg] N. lat. average just over one (1) seabird
interaction per year. Alternatives that would have required the use of
an underwater setting chute were rejected as untenable based on the
fact that the hardware broke when used experimentally, and likely would
not withstand the rigors of routine use aboard commercial fishing
vessels.
Alternatives that would have required all shallow-setting vessels
to side-set in one or more areas were rejected because (1) some smaller
vessels may be unable to be reconfigured for side-setting, and (2)
side-setting has been subject to limited experimental testing and,
although it has been very promising for reducing seabird interactions,
there has been no commercial testing and it is uncertain how well this
technique will perform during routine use. NMFS and the WPFMC have
determined that gradual implementation of side-setting would allow
information collection and further consideration of the merits of this
mitigation measure.
Effects of the Proposed Rule on Small Entities
The proposed rule is expected to have mixed impacts on small
entities. Current seabird deterrent requirements for all vessels
fishing north of 23[deg] N. lat. will be modified to add a requirement
to use a tori line system, as well as to require that strategic offal
discards be used only when seabirds are present. Vessel operators may
opt to side-set with no additional deterrents. Operators of vessels
that can be easily reconfigured for side-setting may find that their
operations are more efficient because (1) less bait will be taken by
seabirds, thus potentially increasing fish catch rates, and (2) side-
setting can improve the efficiency of fishing
[[Page 40304]]
operations because fishing crews do not have to move the fishing gear
from one location on the vessel to another between sets. Whether or not
these savings will be enough to offset the initial purchase and
installation cost (approximately $4,000) and ongoing maintenance cost
(estimated at $50/year) is unknown. Operators of vessels that cannot be
easily reconfigured for side-setting will have to use a tori line
(approximately $3,300 for purchase and installation, with annual
maintenance costs estimated at $2,300/year, per line), in addition to
the currently required measures.
To the extent that these measures increase fish catch rates by
reducing bait loss, they will have a positive economic impact, but
whether or not these savings will be enough to offset the costs of the
measures is unknown. Under the proposed rule, vessels that shallow-set
south of 23[deg] N. lat. will also be subject to seabird deterrent
measures. Operators of these vessels will have to use the same measures
as those required when shallow setting north of 23[deg] N. lat. Impacts
on these operations are likely to be similar to those described above,
but if side-setting is not feasible, vessel operators will have to
invest in blue dye (estimated to cost $1,400/year), containers for
offal discards (initial cost of $150), and tori lines ($3,300
installation plus $2,300 annual maintenance, per line). Again, it is
not known if potential increases in catch rates due to reduced bait
loss will be enough to offset the costs of these deterrent measures.
However, given the already low number of seabird interactions, this
seems unlikely. In addition, estimates of net revenue per vessel from a
2000 survey of the longline fishery indicate that net revenues ranged
from a low of $18,208 for the average large tuna longline vessel to
$385,776 for the average large swordfish longline vessel, with an
average net return of $27,483 and $55,058 for all swordfish and tuna
vessels, respectively. This would indicate that relative reductions in
profitability from this proposed action based on size and target
species may be disproportionately distributed among vessels in the
Hawaii-based longline fleet. However, there is no indication that this
proposed rule would lead to the cessation of operations of any vessel
participating in this fishery.
Significant Alternatives to the Proposed Rule
There were several alternatives considered (2A through 7C in the
regulatory amendment document) that would have allowed vessel owners to
minimize their costs for complying with this action by giving them the
opportunity to use the current seabird avoidance methods at no
additional cost, or to change their avoidance procedures and procure
additional equipment such as a tori line, side-setting equipment, or
blue dye at costs described above. However, the continuation of the
current seabird avoidance methods would not be consistent with the
USFWS 2004 Biological Opinion. Although that Opinion concluded that the
shallow-set longline fishery was not likely to jeopardize the continued
existence of the short-tailed albatross, it contains measures directing
NMFS to ``implement and monitor side-setting or another appropriate
seabird deterrent or combination of deterrents that the USFWS [Service]
agrees is at least as effective as side-setting in reducing the risks
to the short-tailed albatross in the shallow-set Hawaii-based longline
fishery.''
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, and
Reporting and recordkeeping requirements.
Dated: July 6, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR 660 is proposed to
be amended as follows:
PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
1. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 660.22, paragraphs (aa), (bb), (cc), and (mm) are
removed; paragraphs (dd) though (ll) are redesignated as (aa) through
(ii); paragraphs (nn) through (vv) are redesignated as paragraphs (jj)
through (rr); and paragraph (z) is revised to read as follows:
Sec. 660.22 Prohibitions.
* * * * *
(z) Fail to fish in accordance with Sec. 660.35(a)(1) or Sec.
660.35(a)(2) when operating a vessel registered for use under a Hawaii
longline limited access permit in violation of Sec. 660.35(a).
* * * * *
3. In Sec. 660.35, paragraphs (a) and (b)(10) are revised to read
as follows:
Sec. 660.35 Pelagic longline seabird mitigation measures.
(a) Seabird mitigation techniques. When deep-setting or shallow-
setting north of 23[deg] N. lat. or shallow-setting south of 23[deg] N.
lat., owners and operators of vessels registered for use under a Hawaii
longline limited access permit, must either side-set according to
paragraph (a)(1) of this section, or fish in accordance with paragraph
(a)(2) of this section.
(1) Side-setting. Vessels opting to side-set under this section
must fish according to the following specifications:
(i) The mainline must be deployed at least 1 m (3.3 ft) forward
from the stern corner of the vessel;
(ii) The mainline and branchlines are set from the port or the
starboard side of the vessel;
(iii) If a mainline shooter is used, the mainline shooter must be
mounted at least 1 m (3.3 ft) forward from the stern corner of the
vessel;
(iv) Branchlines must have weights with a minimum weight of 60 g
(2.1 oz);
(v) One weight must be connected to each branchline within 1 m (3.3
ft) of each hook;
(vi) When seabirds are present, the longline gear must be deployed
so that baited hooks remain submerged and do not rise to the sea
surface; and
(vii) A bird curtain must be deployed. Each bird curtain must
consist of the following three components: a pole that is fixed to the
side of the vessel aft of the line shooter and which is at least 3 m
(9.8 ft) long; at least three main streamers that are attached at
regular intervals to the upper 2 m (6.6 ft) of the pole and each of
which has a minimum diameter of 20 mm (0.8 in); and branch streamers
attached to each main streamer at the end opposite from the pole, each
of which is long enough to drag on the sea surface in the absence of
wind, and each of which has a minimum diameter 10 mm (0.4 in).
(2) Alternative to side-setting. Vessels that do not side-set must:
(i) Discharge fish, fish parts (offal), or spent bait while setting
or hauling longline gear, on the opposite side of the vessel from where
the longline gear is being set or hauled, when seabirds are present;
(ii) Retain sufficient quantities of fish, fish parts, or spent
bait, between the setting of longline gear for the purpose of
strategically discharging it in accordance with paragraph (i) of this
section;
(iii) Remove all hooks from fish, fish parts, or spent bait prior
to its discharge in accordance with paragraph (i) of this section;
[[Page 40305]]
(iv) Remove the bill and liver of any swordfish that is caught,
sever its head from the trunk and cut it in half vertically and
periodically discharge the butchered heads and livers in accordance
with paragraph (i) of this section;
(v) Employ a tori line system, prior to the first hook being set,
that meets the following requirements:
(A) The tori line must be at least 150 m (492 ft) long for shallow-
setting vessels and 75 m (246 ft) long for deep-setting vessels, and is
composed of an aerial portion attached to a submerged portion. For a
shallow-setting vessel, the aerial portion must extend at least 80 m
(262 ft) behind the stern of the vessel, and the submerged portion must
extend at least 70 m (230 ft). For a deep-setting vessel, the aerial
portion must extend at least 40 m (131 ft), and the submerged portion
must extend at least 35 m (115 ft);
(B) The aerial portion of the line must be composed of a line 3-6
mm (0.12-0.24 in) in diameter, and the submerged portion of the line
shall be composed of twisted polypropylene or rope that is at least 5
mm (0.20) in diameter;
(C) The tori line must be fixed to a pole or vessel structure that
allows the position of the line to be adjusted to achieve the
requirements for aerial and submerged lengths and coverage over the
area where the baited hooks are at or near the sea surface; and
(D) At least three pairs of streamers must be attached to the
aerial portion of the line at regular intervals, beginning no closer
than 5 m (16.4 ft) to the tori pole or vessel structure. Each pair of
streamers must be fixed to a single point on the line. Each streamer
must be brightly colored and made of UV-protected plastic tubing or a
minimum of 10 mm (0.4 in) polyester line or material of equivalent
density. Each streamer must be long enough to drag on the sea surface
in the absence of wind.
(vi) When using basket-style longline gear north of 23[deg] N.
lat., ensure that the main longline is deployed slack to maximize its
sink rate; and
(vii) Use completely thawed bait that has been dyed blue to an
intensity level specified by a color quality control card issued by
NMFS; and
(viii) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb
size) containing blue dye on board the vessel; and
(ix) Follow the requirements in paragraphs (a)(3) and (a)(4) of
this section, as applicable.
(3) Deep-setting requirements. The following additional
requirements apply to vessels engaged in deep-setting using a
monofilament main longline north of 23[deg] N. lat. that do not side-
set. Owners and operators of these vessels must:
(i) Employ a line shooter; and
(ii) Attach a weight of at least 45 g (1.6 oz) to each branchline
within 1 m (3.3 ft) of the hook.
(4) Shallow-setting requirement. In addition to the requirements
set forth in paragraphs (a)(1) and (a)(2) of this section, vessels
engaged in shallow-setting that do not side-set must begin the
deployment of longline gear at least 1 hour after local sunset and
complete the deployment no later than local sunrise, using only the
minimum vessel lights necessary for safety.
(b) * * *
(10) Any seabird that is released, in accordance with paragraph
(b)(9) of this section or under the guidance of a veterinarian, must be
placed on the sea surface.
* * * * *
[FR Doc. 05-13691 Filed 7-12-05; 8:45 am]
BILLING CODE 3510-22-S