Fisheries Off West Coast States and in the Western Pacific;
Highly Migratory Species Fisheries
[Federal Register: April 7, 2004 (Volume 69, Number 67)]
[Rules and Regulations]
[Page 18443-18462]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap04-11]
[[Page 18444]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223, 224 and 660
[Docket No. 031125294-4091-02; 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: Final rule.
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SUMMARY: NMFS publishes a final rule to implement the approved portions
of 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 and was partially approved on February 4, 2004,
under the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). The intended effect of this
final rule is to establish Federal management of manage U.S. fisheries
for Pacific tunas, sharks, billfish, swordfish, and other highly
migratory fish in the surface hook and line, drift gillnet, harpoon,
pelagic longline, purse seine, and recreational fisheries in the U.S.
exclusive economic zone off the coasts of Washington, Oregon, and
California and (for U.S. vessels) in adjacent high seas waters. This
final rule will prevent overfishing of the fish stocks to the extent
practicable and achieve optimum yield for the U.S. fisheries involved
while minimizing bycatch and protected species interactions consistent
with the Magnuson-Stevens Act and other applicable law. The final rule
implements consistent management of these fisheries with respect to the
states, other fishery management councils, and international
agreements. The final rule will promote the long-term economic health
of the fisheries.
DATES: Effective May 7, 2004, except for Sec. Sec. 660.704 Vessel
identification, 660.707 Permits, 660.708 Recordkeeping and reporting,
660.712(d) Vessel monitoring system, 660.712(f) pre-trip notification,
which are effective 60 days after the date of publication in the
Federal Register of a notice announcing approval of the Paperwork
Reduction Act clearance request for this information collection; and
for Sec. 660.712(e) Protected species workshop, which is effective
January 1, 2005.
The prohibitions associated with the delayed requirements are
applicable on the dates of the respective requirements as listed.
ADDRESSES: Copies of the FMP may be obtained from Donald O. McIsaac,
Executive Director, Pacific Fishery Management Council, 7700 NE
Ambassador Place, Suite 200, Portland, Oregon, 97220-1384. Copies of
the Final Environmental Impact Statement (FEIS) and associated final
regulatory impact review (RIR) and final regulatory flexibility
analysis (FRFA) are available from the Southwest Region, NMFS,501 W.
Ocean Boulevard, Suite 4200, Long Beach, CA 90802.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final 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: On December 10, 2003 (68 FR 68834), NMFS
published a proposed rule to implement the proposed FMP under the
authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. That
proposed rule summarized the history of development of the FMP and its
proposed conservation and management measures, and that discussion will
not be repeated here. The comment period for the proposed rule ended on
January 26, 2004. All provisions of the proposed FMP were approved on
February 4, 2004, except a provision applicable to longline fishing by
vessels with permits issued under the FMP. That issue is discussed below.
This final rule and its authorizing FMP are a response to
increasing concern about the effect of fishing on HMS off the U.S. West
Coast and on ocean resources caught incidentally to fishing for HMS.
HMS comprise numerous species of tuna, billfish, oceanic sharks and
other species that range throughout the Pacific Ocean. 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 Ocean. U.S. West Coast fishermen fish
HMS in the U.S. exclusive economic zone (U.S. EEZ) and on the high
seas, and in some cases (e.g., Canada for albacore), in the exclusive
economic zones of other nations.
Marine mammals, sea turtles, and sea birds caught incidentally to
fishing are also affected by some of the fishing gear used to target
HMS. The effect of fishing gear on protected resources is a problem
throughout the Pacific Ocean, and the U.S. has taken action under the
authority of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq.,
and the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., to
minimize the impact of U.S. vessels fishing longline, drift gillnet,
and purse seine gear on these resources.
This final rule implements management measures necessary for
management of the HMS fisheries, providing a foundation for future
management actions that might be necessary as U.S. and international
HMS fisheries change.
Management Unit Species
The species in the management unit are: striped marlin, swordfish,
common thresher shark, pelagic thresher shark, bigeye thresher shark,
shortfin mako (bonito shark), blue shark, north Pacific albacore,
yellowfin tuna, bigeye tuna, skipjack tuna, northern bluefin tuna, and
dorado (also commonly referred to as mahi mahi and dolphinfish).
Fishing Gear Employed
The commercial gears in the management unit are surface hook-and-
line, drift gillnet, longline, purse seine, and harpoon. Charter
recreational vessels are subject to permit and reporting requirements
and may be subject to observer requirements. No specific requirements
are established for anglers using hook-and-line gear.
Permits
The final rule requires a permit with an endorsement for a specific
gear for all commercial vessels. A permit would also be required for
all recreational charter 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 for a 2-year term. Data would
be maintained so that landings by the permitted vessel or by the owner
[[Page 18445]]
of the vessel can be summarized, which would give the Pacific Council
flexibility in determining qualifications for limited entry permits if
the 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.
NMFS will administer the new permit system in the following manner.
NMFS will begin the permit process by issuing HMS permit application
forms to all individuals on this list with the required information
filled in to the extent possible. Much of the needed information is
already available. For example, NMFS has already compiled a list of
vessels that would likely fall under the jurisdiction of 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 Fishery
Management Plan for Pelagic Fisheries of the Western Pacific Region
(Western Pacific Pelagics FMP). In compliance with U.S. obligations
under the Tuna Conventions Act of 1950, NMFS has compiled and provided
to the Inter-American Tropical Tuna Commission information for a vessel
register including all U.S. vessels that fish for tuna in the eastern
Pacific Ocean. This information will be put on the forms mailed to
prospective permitees. There would be no performance criteria (e.g.,
historic fishing) to qualify for a permit. However, the vessel owner
would have to confirm information on the form and provide information
for blank spaces on the form about the vessel or owner in order to have
the permit activated by notice from NMFS. NMFS would then notify owners
to confirm the activation of their permits when the final information
is received and processed. Vessel owners who have not received
confirmation of activation of a permit to harvest HMS within 30 days of
submission of their applications should contact NMFS (see ADDRESSES) to
advise of their interest. Persons who have not been sent an application
form within 60 days of the effective date of the final rule and who
want a permit will need to apply for an HMS permit. Application forms
also will be available by mail and on the SWR home page for persons who
have not been contacted by NMFS. Clearance has been requested under the
Paperwork Reduction Act for the information collection associated with
the permit process. A notice will be published in the Federal Register
when approval of the collection has been received, and 60 days after
that notice, any vessel fishing for HMS in the fishery management area,
or landing HMS in Washington, Oregon or California, will have to have a
valid HMS permit registered for use with that vessel. Once issued, the
permit must be maintained on board the vessel unless the vessel was at
sea when the permit was issued. There would be no cost to fishermen for
this permit. Fishing can continue without a permit until the permit
requirements are in effect.
Recording and Recordkeeping
The final rule requires all permit holders on commercial fishing
vessels and recreational charter vessels to maintain a logbook of catch
and effort in the HMS fisheries. The final rule also requires all
permit holders to submit data in the form and manner specified by state
laws. Logbooks must be submitted to the Regional Administrator or the
appropriate state agency following the end of a fishing trip. Federal
logbooks are now required for (1) vessels fishing on the high seas
under the authority of the High Seas Fishing Compliance Act of 1995
(HSFCA); (2) vessels fishing for tuna under the authority of the Tuna
Conventions Act of 1950; and (3) vessels fishing under the authority of
the regulations implementing the Western Pacific Pelagics FMP. Under
this final rule, the same form used under the HSFCA for troll vessels
fishing albacore on the high seas would become mandatory for all
albacore fishing. Clearance has been requested under the Paperwork
Reduction Act for the information collection associated with the
Federal logbook reporting requirement. A notice will be published in
the Federal Register when approval of the collection has been received,
and 60 days after that notice, any vessel fishing for HMS in the
fishery management area, or landing HMS in Washington, Oregon or
California, will have to report under these regulations. Until then, no
new Federal reporting requirements are in effect. It is noted that
there are currently several state reporting requirements in effect. The
State of California requires a logbook for harpoon vessels, drift
gillnet vessels, and recreational charter vessels. The State of Oregon
requires a logbook for drift gillnet vessels. A person filing these
state logbooks in the manner and form required by state law would
satisfy Federal reporting requirements under this final rule. Duplicate
logbooks would not be required. Logbook forms will be available for
downloading from the Southwest Region home page.
Bycatch
A number of provisions are included in the FMP to assess and reduce
bycatch; however, the FMP recognizes that better information is needed
to assess the amount and type of bycatch in HMS fisheries. The FMP
requires that NMFS, in consultation with the Pacific Council, its
advisory bodies, and the fishery participants, develop observer
sampling designs within 6 months of approval of the FMP for the
longline, surface hook-and-line, small purse seine fisheries, and
recreational charter vessel fisheries. However, a vessel operator of
any vessel registered for use under these regulations must carry an
observer when so requested by the Regional Administrator. An observer
program is already in effect for drift gillnet vessels. In the longer
term, NMFS will also develop an observer sampling plan for private
recreational vessels to assess potential ways of improving information
on managed species and on the quantity of bycatch in recreational
fisheries.
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. Minimizing
the impacts on these species has required regulatory action in the past
under the authority of the MMPA and the ESA. Area closures and special
equipment apply to drift gillnet and longline vessels. A possibility
exists that other fishing gear used to harvest highly migratory species
may also have an impact when more data is obtained. It also is likely
that advances in gear or fishing techniques will reduce or prevent
mortality from takes of these species in the future. 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. 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
[[Page 18446]]
require action by the AA under the authority of the ESA. The Take
Reduction Team established by the MMPA reports to NMFS and biological
opinions provide guidance to NMFS on actions needed to protect
threatened and endangered species. The AA will also look to the Pacific
Council for recommendations on how best to implement any necessary
measures. If appropriate, the Pacific Council will utilize the
framework processes in the FMP to address these issues. This process
does not prevent the AA from taking action under the authority of the
MMPA and the ESA independent of the Council process.
Major Issues
The principal issue addressed in consideration of the Pacific
Council's proposed FMP has been management of the West Coast longline
fishery. The Council's preferred alternative with regard to longline
fishing was (1) to prohibit longline fishing in the U.S. EEZ; (2) for
longline vessels fishing outside the U.S. EEZ and east of 150[deg]
W.
long., to adopt the same restrictions as those that applied in 2003 to
longline vessels fishing with a longline limited entry permit under the
Western Pacific Pelagics FMP, except that the restrictions that prevent
shallow sets for swordfish would not apply; and (3) for longline
vessels fishing west of 150[deg]
W. long., to adopt all of the
restrictions that applied to longline vessels fishing with a longline
limited entry permit under the Pelagic FMP in 2003, which effectively
prohibited shallow sets for swordfish.
The restrictions as proposed to prevent shallow sets for swordfish
west of 150[deg]
W. long. were designed to reduce the impact on
threatened and endangered sea turtles, not swordfish; however, the
Pacific Council felt that there was not sufficient information
available about fishing interactions with sea turtles in the eastern
Pacific to justify restricting swordfish sets east of 150[deg]
W. long.
Thus, owners of longline vessels fishing out of West Coast ports whose
vessels were not registered for use under a western Pacific longline
limited entry permit would have been able to target swordfish in the
eastern Pacific east of 150[deg]
W. long. They also would have had to
comply with all other restrictions, including the requirement to
maintain a VMS on board the vessel, line clippers, and dip nets, as
well as complying with the proper handling of sea turtles and seabirds.
This approach would have established consistency (west of 150[deg]
W. long.) with regulations applicable at the present time to vessels
fishing under regulations implementing the Western Pacific Pelagics
FMP, while minimizing the economic impact on vessels fishing from West
Coast ports by not imposing the restrictions east of 150[deg]
W. long.
In reviewing the proposed FMP, however, NMFS engaged in
consultations under section 7 of the ESA to evaluate the impacts of the
fisheries on species listed as threatened or endangered under that
statute. The consultation concluded that allowing shallow sets for
swordfish east of 150[deg]
W. long. would appreciably reduce the
likelihood of survival and recovery in the wild of loggerhead sea
turtles. Therefore, that provision of the FMP has been disapproved, and
NMFS is proceeding with rulemaking under the authority of the ESA to
protect sea turtles east of 150[deg]
W. long. Those regulations could
become effective at the same time as or even before the final rule
implementing the FMP and would remain in effect as long as necessary to
ensure that the fishery is operated to conform to the ESA. The rule
will be found at 50 CFR Part 223.
In addition, this final rule has a new Sec. 660.720 to ensure
adequate protection for sea turtles in the period between
implementation of the final rule and implementation of specific
provisions that are contingent on vessels being registered for use for
specific gear types. The sea turtle conservation provisions in Sec.
660.712 and associated prohibitions of this rule pertaining to longline
fishing are generally tied to the effective date by which vessels must
be registered for use with specific gear under permits being issued
under the rule. The final rule provides vessel owners with time to
obtain those permits after the permit requirement becomes effective,
which as noted earlier will depend on clearance under the Paperwork
Reduction Act. To ensure that excessive sea turtle takes will not occur
while permits are being processed and issued, this rule establishes sea
turtle protective provisions (e.g., no shallow swordfish sets, no
possession of light sticks, incidental swordfish landing limit of 10
fish per trip, gear requirements) to be implemented immediately for
West Coast longline vessels fishing west of 150[deg]
W. long. even
though permit requirements are not yet effective.
All other provisions of the proposed FMP were approved and this
final rule implements those provisions.
Comments and Responses
Comment 1: One comment indicated that the FMP violates the MMPA.
This comment stated that the California-Oregon drift gillnet fishery is
currently operating without any take authorization for ESA listed
marine mammals. It asserted that NMFS on October 30, 2000, illegally
issued a permit under section 101(a)(5)(E) of the MMPA allowing take of
sperm, fin, humpback, and eastern stock of stellar sea lion. Further,
it asserted that the permit has now expired. Authorizing the
continuation of the drift gillnet fishery through promulgation of the
final rule to implement the FMP without a lawful permit based on a
current finding of negligible impact, and without a recovery plan for
the impacted species, would, therefore, be unlawful. The commenter also
asserted that the continuation of the drift gillnet fishery violates
the MMPA because the fishery has not reached the zero mortality rate
goal (ZMRG) called for by the MMPA, notwithstanding that NMFS has yet
to define ZMRG as required under the MMPA. The 2003 Draft Pacific Stock
Assessment Report estimates 23 Northern Right Whale dolphins
mortalities per year in this fishery which is in excess of the ZMRG for
the species (8-16 depending on interpretation). Similar concerns were
raised for the take of short-finned pilot, sperm, humpback, and fin whales.
Response: It is correct that the drift gillnet fishery is not
operating under an MMPA section 101(a)(5)(E) permit at this time;
however, NMFS is in the process of preparing a Federal Register
document that will consider the necessity of issuance of a permit to
authorize the incidental take of listed marine mammals under the ESA by
the California/Oregon drift gillnet fishery under section 101(a)(5)(E)
of the MMPA. There have been no listed marine mammals observed taken by
the California/Oregon drift gillnet fishery since NMFS issued its
101(a)(5)(E) permit in 2000. This final rule maintains the closure of
the fishery (now implemented under the authority of the MMPA and ESA)
from February 1 through April 30 each year off California and Oregon,
and a 101(a)(5)(E) permit would not be necessary during this period. If
NMFS concludes that there is a permit requirement, appropriate action
will be taken before the fishery reopens.
In addition, in 1996, NMFS convened the Pacific Offshore Cetacean
Take Reduction Team to address the serious injury and mortality of
strategic marine mammals stocks that were incidentally taken during
commercial fishing operations by the California/Oregon drift gillnet
fishery. In 1997, NMFS issued regulations to implement the Pacific
Offshore Cetacean Take Reduction Plan (POCTRP). The POCTRP
[[Page 18447]]
has been successful at reducing strategic marine mammal stocks to
insignificant levels approaching a zero mortality and serious injury
rate, taking into account the economics of the fishery, the
availability of existing technology, and existing State or regional
fishery management plans. In addition, the Pacific Offshore Cetacean
Take Reduction Team and the Pacific Scientific Review Group have both
recommended no further strategies to reduce marine mammals caught
incidentally by the California/Oregon drift gillnet fishery.
Comment 2: One comment indicated that the FMP violates the
Magnuson-Stevens Act with respect to bycatch because the FMP provides
no tangible management measures to reduce bycatch levels as required
under the Magnuson-Stevens Act. For example, the California-Oregon
Drift Gill Net fishery has high rates of bycatch of ocean sunfish and
blue sharks and no actions are proposed to reduce this bycatch.
Likewise, the large vessel tuna purse seine fishery catches juvenile
tunas and sharks, yet the FMP does not include measures to address
these bycatch issues.
Response: The Magnuson-Stevens Act requires that FMPs establish a
standardized reporting methodology for assessing bycatch; reduce
bycatch to the extent practicable; and reduce mortality of unavoidable
bycatch to the extent practicable. In the recreational fishery, this
includes a voluntary catch and release program in which released fish
would not be considered bycatch. The Magnuson-Stevens Act does not
require measures to reduce bycatch that are not practicable. In
accordance with the Magnuson-Stevens Act, NMFS is developing a bycatch
protocol that describes common elements of a standardized bycatch
reporting methodology for fisheries under the jurisdiction of the
agency. Consistent with this protocol, Chapter 5 of the FMP reviews all
the fisheries to assess bycatch and evaluates the potential and
practicability of alternative approaches (gear modifications, changes
in fishing techniques, time/area closures, etc.) to reduce bycatch and
of unavoidable bycatch mortality as required. The FMP concludes in most
instances that measures already in place address bycatch to the extent
practicable, though it is noted that the collection of additional
information through observer programs is necessary to provide a better
factual basis for developing and evaluating new alternatives. The final
regulations require mandatory recording and submission of fishing
logbooks for all commercial gear types and for the recreational CPFV
fishery. For those HMS fisheries not already carrying at-sea observer's
under authority of the MMPA or the ESA, the FMP will authorize the
placement of observers on board at the discretion of the NMFS Regional
Administrator to document, among other things, bycatch and protected
species interactions. The FMP mandates NMFS to develop observer
coverage levels and sampling designs based on the analysis of available
observer data and following, to the extent practical, elements of the
bycatch protocol. In the meantime, with respect to specific bycatch
concerns for individual fisheries, it is noted that the majority of the
ocean sunfish captured as bycatch in the DGN fishery are released
alive. There are no known practicable means to reduce the bycatch
levels in the fishery at this time. In the purse seine fishery,
measures adopted by NMFS under the Inter-American Tropical Tuna
Commission (IATTC) tuna fisheries management program addresses bycatch
of juvenile tuna to the extent practicable at this time, though
additional research is being pursued to determine if there are
additional approaches (e.g., possible use of sidescan sonar to identify
small fish prior to making a set) that can help reduce catches of small
tuna. No other measures to reduce bycatch or bycatch mortality are
determined to be practicable at this time.
Comment 3: One comment indicated that the action violates the
National Environmental Policy Act (NEPA) because the FEIS for this
action lacked full information about, or insufficient analysis of,
seabird, marine mammal, sea turtle, and finfish bycatch under the
proposed alternatives. In addition, a complete ban on longline and/or
DGN gear types was not analyzed as an alternative.
Response: On December 22, 2003, NOAA filed with the Environmental
Protection Agency the FEIS for the FMP in combination with the ESA
rule. On January 2, 2004 (69 FR 69), the notice of availability for the
FEIS was published in the Federal Register. The FEIS fully analyzes all
the alternatives available to the Pacific Council and NMFS, including
full analysis of seabird, marine mammal, sea turtle, and finfish
bycatch and measures to avoid adverse impacts (and in the case of ESA
species, jeopardy) from the fisheries as they would operate under the
FMP. At the start of the FMP process, including scoping, the Pacific
Council considered such alternatives as eliminating certain gear types,
but there was little public interest in or desire for eliminating the
DGN fishery or for eliminating the longline fishery as long as this
gear was not permitted within the U.S. EEZ. Therefore, the Pacific
Council did not further evaluate total elimination of these gears as
the Pacific Council concluded these were not reasonable alternatives in
its documents.
Comment 4: One comment indicated that current information shows
that there are better seabird avoidance gear modifications and
techniques than those in the FMP, which proposes the measures required
for Hawaii-based longline vessels fishing under the FMP for the Western
Pacific Pelagics FMP. This comment also indicated that the Migratory
Bird Treaty Act (MBTA) imposes obligations on U.S. fishers, and the FMP
does not meet those obligations.
Response: The information provided by the reviewer on seabird
avoidance gear is from recent targeted studies and was not available to
the Pacific Council during FMP development. The information will be
provided to the Pacific Council for future consideration. The comment
does not indicate what provisions of the MBTA have been violated; no
violations are apparent to NMFS. This statute does not apply beyond the
Territorial Sea of the U.S., and HMS fisheries occur almost exclusively
beyond the Territorial Sea.
Comment 5: One comment indicated that the FMP might result in
duplication of, or conflicts with, existing international agreements
such as under the Tuna Conventions Act, and noted that the majority of
the waters through which north Pacific albacore tuna migrate are out of
the Pacific Council's jurisdiction. On a related theme, another comment
recommended that the proposal to include tuna as managed species be
disapproved because (a) unilateral management cannot be effective and
(b) the FMP could result in serious harm to U.S. fisheries. This
comment also suggests that the Council process is not suited to
considering the international aspects of management of tuna fisheries
and tuna stocks.
Response: NMFS does not anticipate any duplication or conflicts
with international programs. Measures recommended by the IATTC and
approved by the U.S. Department of State will continue to be
implemented under the Tuna Conventions Act, 16 U.S.C. 951 et seq. The
FMP will not affect implementation of the U.S-Canada Albacore Treaty as
amended or affect fishing under that Treaty. The FMP will not affect
implementation of the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific if and when that
agreement is ratified by the U.S. In
[[Page 18448]]
fact, the data collected under the FMP through logbooks and observer
programs should provide better factual support to the U.S. in its
activities in these international bodies. Similarly, the Council
management process involves broad public involvement with transparent
decision making and is, therefore, a good vehicle for the U.S.
Department of State and NMFS to obtain advice on issues and
opportunities for international collaboration to resolve issues.
Further, the FMP notes that the ability to take management action under
the Tuna Conventions Act (and later statutes to implement other
treaties) is very limited and falls short of the authority needed and
available under the Magnuson-Stevens Act for addressing domestic
fishery problems. For example, the Tuna Conventions Act would not
authorize regulation of any U.S. fisheries without recommendations from
the IATTC.
Comment 6: One comment urged NMFS to take a stronger role in
advocating international agreements for the protection of leatherback
turtles killed by foreign fishermen targeting swordfish.
Response: NMFS is actively promoting international action for sea
turtle conservation, both through international organizations and
conventions and through direct discussions with other nations. For
example, reduction of sea turtle takes and mortalities is a major new
issue in the IATTC, where NMFS is supporting strong action to deal with
this problem. NMFS is also aggressively distributing information about
the results of its experimentation with new longline gear and
techniques to reduce sea turtle takes and mortality. Actions taken to
implement the FMP and the companion ESA rule demonstrate that the U.S.
is actively regulating its own fisheries even as it promotes
international collaboration.
Comment 7: One comment urged that NMFS use flexibility to reduce a
burdensome time and area closure for the drift gill net fishery; the
reviewer felt this closure was unnecessary and not supportable.
Response: The FMP proposed that current drift gill net fishery
regulations be continued but under Magnuson-Stevens Act authority. The
action to approve, disapprove, or disapprove in part the FMP is not an
appropriate mechanism for implementing the requested change, which is
beyond the scope of the Council proposals. The Council is the
appropriate body for considering the request, and the views provided
will be forwarded to the Pacific Council for its use.
Comment 8: One comment addressed the economic impacts of the NMFS
decision to approve most of the FMP and then possibly impose the
additional ESA rule. That comment indicated that the ESA rule would
effectively eliminate the West Coast longline fishery as it was
dependent on swordfish and would not be able to survive targeting tuna
or other species.
Response: NMFS recognizes that the longline fishery is likely to be
severely curtailed if not eliminated, at least in the short term, if
both rules were finalized. NMFS acknowledges that it does not expect
that longline fishing for species (e.g., tuna) other than swordfish
will provide a profitable fishery based on current information.
However, NMFS also believes that there may be alternatives available to
the longline fishers in the future. First, NMFS is currently
considering a proposal from the Western Pacific Fishery Management
Council that would alleviate much of the burden for longline vessels
fishing out of Hawaii. That proposal effectively would reopen longline
fishing for swordfish by vessels registered for use under western
Pacific longline limited entry permits. If approved, this would provide
an alternative fishing opportunity for most West Coast vessels, whose
owners would be able to register their vessels for use under western
Pacific longline limited entry permits. Second, NMFS research has
demonstrated that longline fishing may be sufficiently protective of
sea turtles if certain gear and bait combinations are required,
especially if adopted with additional controls on overall fishing
effort. The PFMC will be encouraged to explore the possible adoption of
such measures to alleviate the burden placed on the West Coast fleet
for the short term. In this context, it is noted that the fishery is
generally at a low level in the summer and early fall, and the PFMC may
be able to fashion an effective regulatory regime by the end of 2004.
However, no changes have been made to the final rule at this time to
respond to this comment.
Comment 9: A large number of letters and faxes were received
supporting the proposed FMP and urging its approval. Most of these
letters supported the proposal not to allow longline fishing in the EEZ
due to bycatch and protected species interaction concerns. One letter
specifically objected to the provision of the proposed FMP to allow
longline fishing for swordfish outside the EEZ and east of 150[deg]
W.
long.
Response: The FMP was approved as submitted with the exception of
the provision allowing longline fishing for swordfish east of 150[deg]
W. long. The final rule reflects that decision.
Changes From the Proposed Rule
After consideration of public comments and other considerations,
the following changes have been made from the proposed rule.
1. The term of permits in the final rule has been changed from the
5 years originally proposed to 2 years. A review of experience in other
fisheries and other regions demonstrates that a permit period of 2
years or less is more effective in ensuring accurate information about
patterns of fishery participation and the names and addresses of
participants in the fisheries. A 5-year permit term would result in a
high probability that changes in vessel names and owners and interests
of related businesses will not be reported or recorded. In turn, NMFS
might be unable to advise interested parties be adequately of changes
in management measures or in permit and reporting requirements in the
future. Further, the permit term will be staggered so that there will
be less likelihood of an extreme permit renewal burden at any one time
of the year. This is more efficient for NMFS and more likely to result
in delivery of new permits to the fishers in a timely manner.
2. The final rule clearly establishes that initial permit decisions
are made by the Assistant Regional Administrator for Sustainable
Fisheries, Southwest Region, NMFS. This was inadvertently not discussed
in the proposed rule. The final rule also includes a provision for
appeals of permit decisions to the Regional Administrator. Experience
in other permit programs indicates a need for an appeal process to
review decisions that applicants believe are incorrect or based on
inappropriate interpretation of facts.
3. A provision has been added to the final rule to require that
longline vessel operators or owners contact the Southwest Region, NMFS,
or a designated agent, prior to departure on a fishing trip. This
requirement is identical to a provision in the rules implementing the
Western Pacific Pelagics FMP. It is expected that the provision in the
ESA rule discussed above that prohibits shallow longline sets will
result in a low level of longline fishing because swordfish sets will
be prohibited and sets targeting tuna are not expected to support a
profitable fishery, at least for most of the year. NMFS has little
information about the extent to which such fishing will result in
interactions with sea turtles or other bycatch problems, and intends to
place
[[Page 18449]]
observers when available to ensure collection of this needed
information when the opportunity arises. This provision will not become
effective until Paperwork Reduction Act approval has been received.
4. The final rule includes a provision that permits, once issued,
be on board vessels and available for inspection by an authorized agent
unless the vessel was at sea when the permit was issued, in which case
the permit must be on board the vessel on the next trip. This was
inadvertently omitted from the proposed rule.
5. A new provision was added to Sec. 660.712 to cross-reference
the prohibition of shallow swordfish sets by longline vessels being
implemented at 50 CFR Part 223. This will clearly indicate that
operators of longline vessels managed under this subpart are subject to
the provisions of the regulations in 50 CFR 223 if they plan to use
longline gear in waters beyond the EEZ and east of 150[deg]
W. long.
This is necessary to ensure that the fishing vessel operators do not
construe the absence of the prohibition in the final rule implementing
the FMP to mean that such sets would be permitted.
6. The vessel marking requirement has been changed to be consistent
with regulations for other fisheries issued under the Magnuson-Stevens
Act and to recognize the differing features of different size vessels.
The final rule requires markings of 18 inches (45.7 cm) or greater for
vessels 65 ft (20 m) in length or greater; and markings of 10 inches
(25.4 cm) or greater for vessels less than 65 ft (20 m) length.
7. The final rule clarifies that a vessel is prohibited from
fishing without an observer on board when the vessel owner or operator
has been advised of the requirement to carry an observer.
8. The final rule contains a new Sec. 660.720 to establish
temporary provisions to limit longline fishing by West Coast vessels
operating on the high seas of the Pacific Ocean west of 150[deg]
W.
long. These interim measures will expire with the implementation of the
permit requirements of Sec. 660.707 and the longline fishery control
measures in Sec. 660.712. It is necessary to implement these temporary
provisions to ensure that excessive sea turtle takes do not occur from
unlimited longline fishing before the effective date of those permit
requirements.
9. A number of technical changes were made for clarity and to
correct errors in the proposed rule. Section 660.703 was revised to
indicate that the management area includes all waters where vessels
subject to this subpart may fish. With this change, the definition of
fishery management area in Sec. 660.702 was deleted as it was
unnecessary. The procedures for processing permit applications and
issuing permits under Sec. 660.707 have been clarified and tied to
approval of the Paperwork Reduction Act clearance request. The language
detailing reporting requirements under Sec. 660.708 has been revised
to more clearly describe the extent to which use of existing logbooks
satisfy reporting requirements under this subpart and to tie the
requirements to approval of the Paperwork Reduction Act clearance
request for this collection.
Classification
This final rule is implementing the approved portions of the FMP
that were found to be consistent with the national standards of the
Magnuson-Stevens Act and other applicable laws
The Pacific Council prepared and submitted the final FMP in the
form of a final environmental impact statement. NOAA prepared addendum
materials to reflect the decision to partially approve the FMP and to
implement additional ESA regulations. These addendum materials were
filed along with the final Pacific Council document as a Final
Environmental Impact Statement that satisfies NEPA requirements for
documentation and analysis of the impacts on the human environment of
the fisheries as they would operate under the FMP. The FEIS was filed
with the Environmental Protection Agency on December 22, 2003, and is
available from the Southwest Region, NMFS (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA)
that described the economic impact this rule, if implemented, would
have on small entities. No comments were received on any aspect of the
IRFA. One comment on the proposed rule addressed the economic impacts
of the proposed rule and is addressed in the response to Comment 8 of
this final rule. NMFS then prepared a FRFA for this final rule. The
FRFA is available from NMFS (see ADDRESSES). A summary of the FRFA
follows:
A description of the action, why it is being considered, and the
legal basis for this action are contained in the SUMMARY and in the
SUPPLEMENTARY INFORMATION portions of this final rule. 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, the SBA
considers a small business to be one that employs 500 or fewer persons.
For marinas and charter/party boats, the SBA considers a small business
to be one with annual receipts not in excess of $5.0 million. Fishing
vessels targeting HMS and some businesses that support harvesters
(especially buyers of swordfish from longline vessels) are expected to
be the only types of small entities directly impacted by the proposed
actions. The total number of vessels is estimated to be about 1,337,
broken down as follows:
Purse Seine 27
Surface Hook-and-Line 887
Drift Gillnet 121
Longline 20
Harpoon 32
Charter 250
Total 1,337
In addition, approximately 100 small businesses are involved with
the fisheries as processors and buyers of fish taken in HMS fisheries.
None of their activities will be regulated under the FMP. The
regulatory actions 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 regulatory
alternatives considered were expected to add to the costs or reduce
revenues of marinas and charter boats. No comments were received
directly addressing the IRFA, but one comment addressed the economic
impacts of the NMFS decision to approve most of the FMP and then impose
the additional ESA rule. That comment indicated that the added rule
would effectively eliminate the West Coast longline fishery as it was
dependent on swordfish and would not be able to survive targeting tuna
or other species. NMFS recognizes that this is a likely result in the
short term.
NMFS considered and evaluated a wide range of alternatives in the
RIR/FRFA (see ADDRESSES), including not implementing the FMP,
specifying different mixes of gears and species in the management unit,
and deferring immediate regulations, as well as considering different
types of regulations, for the drift gillnet and longline fisheries.
NMFS concluded that the provisions in this final rule are necessary and
appropriate for effective conservation and management of the HMS fisheries.
The final rule establishes regulations for 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 final
rule defines commercial legal HMS gear as
[[Page 18450]]
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. The principal economic effects are on the drift
gillnet and longline fishing fleets.
An alternative for drift gillnet gear was to allow stretched mesh
less than 14 inches (35.56 cm). The selected alternative of requiring
14 inch (35.56 cm) stretched mesh or larger for legal drift gillnet
gear 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. Landings data indicate
that there could be as many as 20 vessels that might have fished small-
mesh drift gillnets 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 14 (35 cm) inch stretched mesh or
greater, 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
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 implements turtle protection closures north of Point Sur,
CA to 45[deg]
N. lat. (August 15 to November 15), and south of Pt.
Conception to 120[deg]
W. long. during a forecasted or occurring El
Nino event (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 implementing the existing state
limited entry programs, which would significantly increase Federal
costs and administrative burdens, was premature. Closures off
Washington and Oregon are intended to protect the common thresher
shark, sea turtles and marine mammals. This action 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 financial impacts resulting from
disproportionality between small and large vessels under the proposed
action.
With respect to longline fishing, the final rule prohibits the use
of pelagic longline gear in the U.S. EEZ. This action continues the de
facto longline prohibition throughout the U.S. EEZ by states'
regulations and minimizes potential bycatch of fish and protected
species, and reduces fishery competition problems. There are no vessels
participating in a pelagic longline fishery within the U.S. EEZ off the
U.S. West Coast. Oregon is the only state that allows pelagic
longlining within the U.S. EEZ on a case by case basis, and 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
considered for adoption within the U.S. EEZ 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 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. 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. The annual average change in short-run
financial profits is also shown.
[[Page 18451]]
------------------------------------------------------------------------
Change in the
Present Value Average Annual
of Short-Run Change in
Financial Short-Run
Alternative Profits Financial
Relative to Profits
the Status Quo Relative to
(25-Year Time the Status Quo
Horizon)
------------------------------------------------------------------------
Pelagic Longline w/in NC NC
the U.S. EEZ
Alternative 1:
Current state
measures would remain
in place under
states' authorities
and there would be no
new Federal
regulations governing
longline use in the
U.S. EEZ. (Status Quo/
No Action)
Pelagic Longline w/in NC NC
the U.S. EEZ
Alternative 2:
Establishes a general
prohibition on the
use of pelagic
longline gear in the
U.S. EEZ. (Final rule
action)
Pelagic Longline w/in NQ+ NQ+
the U.S. EEZ
Alternative 3:
Prohibits longlining
within the West Coast
U.S. EEZ by
indefinite
moratorium, with the
potential for re-
evaluation by the
Council following
completion of a
bycatch reduction
research program with
pre-established
strict protocols.
Must prove negligible
impact on protected
and bycatch species.
Pelagic Longline w/in NQ+ NQ+
the U.S. EEZ
Alternative 4:
Authorizes a limited
entry pelagic
longline fishery for
tunas and swordfish
within the U.S. EEZ,
with effort and area
restrictions, to
evaluate longline
gear as an
alternative to DGN
gear to reduce
bycatch or bycatch
mortality and
protected species
interactions.
Pelagic Longline w/in NQ+ NQ+
the U.S. EEZ
Alternative 5:
Prohibits longlining
within the West Coast
U.S. EEZ with the
potential for re-
evaluation by the
Council following
completion of a tuna-
swordfish-bycatch
research experiment
carried out under a
qualified EFP to
determine if longline
gear can be fished in
ways that produce
bycatch and protected
species interaction
levels that are
significantly less
than by drift
gillnets (a=0.05).
------------------------------------------------------------------------
There are not expected to be any financial impacts associated with
Alternative 2 because it essentially represents the status quo. It
would have eliminated the Oregon longline fishery, authorized outside
25 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 offered potential increases in
financial profits if it could be scientifically determined that there
would not be an adverse impact on bycatch and protected species
interactions.
Beyond the U.S. EEZ, the final rule 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. Restrictions
control sea turtle and seabird interactions and improve monitoring of
the fishery. A total of 38 vessels participated in the West Coast-
based, high seas pelagic longline fishery during 2001. 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 high seas pelagic longline regulatory
alternative considered 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 the no action alternative. The table below 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.
Under the status quo, regulations would not be promulgated to
implement the FMP measures for 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 was expected to be different from recent
conditions. Swordfish is the target species of this fishery, and
swordfish sets would likely 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 assumed that
(absent action through this final rule) 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, however,
would have allowed 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 in waters bounded by 15[deg]
N. lat. and the
equator and by 145[deg]
W. long. and 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 3 (the action being taken in
[[Page 18452]]
this final rule) prohibits swordfish targeting in all waters by U.S.
West Coast longline vessels. Under this alternative, it is expected
that the fishery would cease in the long run, in which case there is no
difference from the status quo.
------------------------------------------------------------------------
Change in the
Present Value Average Annual
of Short-Run Change in
Financial Short-Run
Alternative Profits Financial
Relative to Profits
the Status Quo Relative to
(25-Year Time the Status Quo
Horizon)
------------------------------------------------------------------------
High Seas Pelagic NC NC
Longline Alternative
1: States'
regulations would
apply to longline
fishing and landings
and Federal
regulations may be
developed under other
authorities. Vessels
would have to obtain
HSFCA permits and
file HSFCA logbooks,
as is now the case.
(Status Quo/No
Action)
High Seas Pelagic .............. $6,712,558
Longline Alternative
2: Applies to West
Coast-based longline
vessels fishing west
of 150[deg]
W
longitude all of the
restrictions applied
to Hawaii-based
longline vessels, but
east of 150[deg]
W
long., applies
selected
restrictions,
allowing West Coast-
based vessels to
target swordfish east
of that line.
(Proposed Action)
7 percent Discount $78,225,581 ..............
Rate
4 percent Discount $105,645,527 ..............
Rate
High Seas Pelagic .............. NC
Longline Alternative
3: Applies to West
Coast-based longline
vessels all
conservation and
management measures
applied to Hawaii-
based longline
vessels to control
sea turtle and
seabird interactions
and to monitor the
fishery in all waters
(final rule action).
7 percent Discount NC ..............
Rate
4 percent Discount NC ..............
Rate
------------------------------------------------------------------------
Alternative 2 would have maintained the fishery, but imposed some
slight additional costs on West Coast-based longliners targeting
swordfish on the high seas. Fishermen would have incurred 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 have been a slight
reduction in annual short-run, financial profits from those reported
above. There may also have been reductions in swordfish catch rates due
to the alternative of turtle and seabird mitigation measures. This
could have further reduced short-run, financial profits. In the absence
of this rule, the fishery would likely have been subject to regulations
promulgated under other authorities, which would be expected to result
in the longline fishery's 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 could persist under existing state regulations, in which case
short-run financial profits would be 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. As noted above, all
of the longline 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 actions in the final rule were selected because they best meet
the requirements of the Magnuson-Stevens Act and the ESA. Continuation
of the drift gillnet rules under Magnuson-Stevens Act authority will
facilitate timely management of the fishery in a public process with
necessary protection for marine mammals and sea turtles. Allowing
swordfish targeting without additional controls would result in fishing
that appreciably reduced the likelihood of survival and recovery in the
wild of loggerhead sea turtles, a species listed as threatened under
the ESA. Prohibiting swordfish targeting was necessary to avoid
jeopardy to this species. Other alternatives that were considered would
not have provided the necessary protection to sea turtles.
NMFS also believes that there are or may be in the near term
alternatives available to the longline fishers. First, NMFS is
considering a proposal that would alleviate much of the burden for
longline vessels fishing out of Hawaii. That proposal effectively would
reopen longline fishing for swordfish by vessels registered for use
under western Pacific longline limited entry permits. If approved, this
would provide an alternative fishing opportunity for most West Coast
vessels, whose owners would be able to register their vessels for use
under western Pacific longline limited entry permits. Second, NMFS
research has demonstrated that longline fishing may be sufficiently
protective of sea turtles if certain gear and bait combinations are
required, especially if adopted with additional controls on overall
fishing effort. The Pacific Council will be encouraged to explore the
possible adoption of such measures to alleviate the burden placed on
the West Coast fleet for the short term. In this context, it is noted
that the fishery is generally at a low level in the summer and early
fall, and the Pacific Council may be able to fashion an effective
regulatory regime by the end of 2004. However, no changes have been
made to the final rule at this time. The action would impose new
reporting and recordkeeping requirements for some HMS vessels.
Application forms for permits must be confirmed and/or completed by
owners seeking permits for all commercial gears and charter vessels.
All commercial vessels and charter vessels must maintain and submit
logbooks of catch and effort in the fisheries. State logbooks may
satisfy this requirement, and this final rule includes a requirement
that vessel owners and operators comply with all applicable regulations
requiring reports to state agencies. A pre-trip notification is
required for longline vessels. Also,
[[Page 18453]]
longline vessels must have vessel monitoring system units on their
vessels, provided by and installed at NMFS expense.
No specific actions have been taken to minimize the economic
impacts on owners and operators of West Coast longline vessels, as
there are no alternatives available that will meet the requirements of
the Magnuson-Stevens Act and the ESA. The ESA requires that activities
that would jeopardize the continued existence of any species listed
under that act be prohibited or curtailed. All the alternatives that
allowed swordfish targeting by longline vessels would fail to meet the
test of the ESA and therefore would violate the Magnuson-Stevens Act.
The original proposal to prohibit swordfish targeting west of 150[deg]
W. long. and allow it east of 150[deg]
W. long. resulted in a jeopardy
conclusion under the ESA. There is reason to believe that adjustments
(such as gear and bait requirements) can be made in the future
management program that will alleviate the burden and allow the West
Coast longline fishery to resume, albeit perhaps at a lower level. It
will take some time, however, to develop and implement any such changes
in management. No adjustments are needed for other fishery sectors as
there are minimal economic impacts from the final rule.
This FMP contains collection-of-information requirements for 6
separate fisheries subject to review and approval by OMB under the PRA.
These requirements have been submitted to OMB for approval. The public
reporting burden for these requirements is estimated to average 20-35
minutes for a permit application depending on the extent of correction
of information on application forms and of new information to be
submitted on those forms; 5 minutes for a pre-trip notification by
longline vessel operators; and 45 minutes to affix the official number
of a vessel to its bow and weather deck. In addition, for longline
vessels, there would be a burden of 4 hours for installation of a
vessel monitoring system, 2 hours for maintenance of the system, 24
seconds for each electronic report submitted via the satellite based
vessel monitoring system; and 5 minutes for filling out a log each day.
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.
This final rule is consistent with the ESA. A formal consultation
with NMFS Protected Resources under the ESA was initiated on September
23, 2003. Based on the conclusions of the consultation, the Regional
Administrator determined that fishing activities under this final rule,
when considered in combination with a rule being promulgated under the
authority of the ESA, would not jeopardize the continued existence of
any species. Consultations were also completed with the U.S. Fish and
Wildlife Service (USFWS), which concluded that the fisheries would not
jeopardize the continued existence of any listed species under the
USFWS jurisdiction.
The Regional Administrator determined that fishing activities
conducted under this final rule would have no adverse impacts on marine
mammals.
List of Subjects in 50 CFR
Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements.
Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,
Reporting and recordkeeping requirements.
Dated: March 25, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
? For the reasons set out in the preamble, 50 CFR parts 223, 224, and
660, are 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.
Sec. 223.206 [Amended]
? 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 sea turtles are provided at
Sec. 223.206 (d)(2)(iv).
PART 660--FISHERIES OFF WEST COAST STATES 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 Pacific Coast Treaty Indian rights.
660.707 Permits.
660.708 Reporting and recordkeeping.
660.709 Annual specifications.
660.710 Closure of directed fishery.
660.711 General catch restrictions.
660.712 Longline fishery.
660.713 Drift gillnet fishery.
660.714 Purse seine fishery. [Reserved.]
660.715 Harpoon fishery. [Reserved.]
660.716 Surface hook-and-line fishery. [Reserved.]
660.717 Framework for revising regulations.
660.718 Exempted fishing.
[[Page 18454]]
660.719 Scientific observers.
660.720 Interim protection for sea turtles.
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 fishing for HMS in the U.S. EEZ off
the coasts of Washington, Oregon, and California and in adjacent high
seas waters.
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 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,
retaining, possessing, landing and/or sale of fish; 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 includes 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 (35.5 cm) 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) of the
following year.
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 of Commerce 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 or freezing at sea 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 charter vessel means a vessel that carries fee-paying
passengers for the purpose of recreational fishing.
Recreational fishing means fishing with authorized recreational
fishing gear for personal use only and not for sale or barter.
Regional Administrator means the Administrator, Southwest Region,
NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or
a designee.
[[Page 18455]]
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 his
or her designee.
Tranship means offloading or otherwise transferring HMS or products
thereof to a receiving vessel.
Vessel monitoring system unit (VMS unit) means the hardware and
software equipment owned by NMFS, installed on vessels by NMFS, and
required by this subpart K to track and transmit the positions from
fishing vessels.
Sec. 660.703 Management area.
The fishery management area for the regulation of fishing for HMS
has the following designations and boundaries:
(a) Southern boundary--the United States-Mexico International
Boundary, which is a line connecting the following coordinates:
32[deg]35'22'' N. lat. 117[deg]27'49'' W. long.
32[deg]37'37'' N. lat. 117[deg]49'31'' W. long.
31[deg]07'58'' N. lat. 118[deg]36'18'' W. long.
30[deg]32'31'' N. lat. 121[deg]51'58'' W. long.
(b) Northern boundary--the United States-Canada Provisional
International Boundary, which is a line connecting the following
coordinates:
48[deg]29'37.19'' N. lat. 124[deg]43'33.19'' W. long.
48[deg]30'11'' N. lat. 124[deg]47'13'' W. long.
48[deg]30'22'' N. lat. 124[deg]50'21'' W. long.
48[deg]30'14'' N. lat. 124[deg]54'52'' W. long.
48[deg]29'57'' N. lat. 124[deg]59'14'' W. long.
48[deg]29'44'' N. lat. 125[deg]00'06'' W. long.
48[deg]28'09'' N. lat. 125[deg]05'47'' W. long.
48[deg]27'10'' N. lat. 125[deg]08'25'' W. long.
48[deg]26'47'' N. lat 125[deg]09'12'' W. long.
48[deg]20'16'' N. lat. 125[deg]22'48'' W. long.
48[deg]18'22'' N. lat. 125[deg]29'58'' W. long.
48[deg]11'05'' N. lat. 125[deg]53'48'' W. long.
47[deg]49'15'' N. lat. 126[deg]40'57'' W. long.
47[deg]36'47'' N. lat. 127[deg]11'58'' W. long.
47[deg]22'00'' N. lat. 127[deg]41'23'' W. long.
46[deg]42'05'' N. lat. 128[deg]51'56'' W. long.
46[deg]31'47'' N. lat. 129[deg]07'39'' W. long.
(c) Adjacent waters on the high seas in which persons subject to
this subpart may fish.
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 10 inches
(25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to
or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm)in
height for vessels longer than 65 ft (19.81 m) in length. 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 fishing gear.
(b) Fish with gear in any closed area specified in this subpart
that prohibits the use of such gear.
(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.
(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,
except if the permit was issued while the vessel was at sea.
(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 on board a vessel without a VMS unit HMS harvested with
longline gear after NMFS has installed the VMS unit on the 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)(1).
(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)(6)
(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)(9).
(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 with a vessel registered for use of longline gear
within closed areas or by use of unapproved gear configurations in
violation of Sec. 660.712(a)(2), (a)(3), (a)(7), (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-
[[Page 18456]]
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)(17).
(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).
(jj) Fail to notify the Regional Administrator at least 24 hours
prior to departure on a fishing trip using longline gear as required
under Sec. 660.712(f).
(kk) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, direct fishing effort toward
the harvest of swordfish or fail to have and use gear in waters west of
150[deg] W. long. in violation of Sec. 660.720.
(ll) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, possess a light stick on board
a longline vessel on the high seas of the Pacific Ocean west of
150[deg] W. long. north of the equator in violation of Sec. 660.720
(a)(ii).
(mm) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, possess more than 10 swordfish
on board a longline vessel from a fishing trip where any part of the
trip included fishing on the high seas of the Pacific Ocean west of
150[deg] W. long. north of the equator in violation of Sec. 660.720
(a)(iii).
(nn) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, fail to employ basket-style
longline gear such that the mainline is deployed slack when fishing on
the high seas of the Pacific Ocean west of 150[deg] W. long. north of
the equator, in violation of Sec. 660.720 (a)(iv).
(oo) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, when a conventional
monofilament longline is deployed by a vessel subject to this section,
deploy fewer than 15 branch lines between any two floats, in violation
of Sec. 660.720 (a)(v). Vessel operators using basket-style longline
gear may not set less than 10 branch lines between any 2 floats when
fishing in waters west of 150[deg]
W. long. north of the equator.
(pp) Except when fishing under a western Pacific longline limited
entry permit issued under Sec. 660.21, fail to deploy longline gear
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,
in violation of Sec. 660.720 (a)(vi).
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.
(b) Pacific Coast treaty Indian tribes means the Hoh, Makah, and
Quileute Indian Tribes and the Quinault Indian Nation.
(c) NMFS recognizes the following areas 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
of Commerce recognizes the sovereign status and co-manager role of
Indian tribes over shared Federal and tribal fishery resources.
Accordingly, the Secretary of Commerce 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 u&a 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)
of this section.
(h) Fishing by a member of a Pacific Coast treaty Indian tribe
outside that tribe's u&a 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 vessels that fish for HMS off
or land HMS in the States of California, Oregon, and Washington.
(1) A commercial fishing vessel of the United States must be
registered for use under a HMS permit that authorizes the use of
specific gear, and a recreational charter vessel must be registered for
use under a HMS permit if that vessel is used:
(i) To fish for HMS in the U.S. EEZ off the States of California,
Oregon, and Washington; or
(ii) 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.
[[Page 18457]]
(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) 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.
(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, the Tuna Conventions Act of 1950, the Marine Mammal Protection
Act, and the Fishery Management Plan for Pelagic Fisheries of the
Western Pacific Region, or whose vessels are listed on the vessel
register of the Inter-American Tropical Tuna Commission.
(2) All permits issued by NMFS in accordance with paragraph (b)(1)
of this section will authorize the use of specific fishing gear by the
identified commercial fishing vessels.
(3) An owner of a vessel subject to these requirements who has not
received an HMS permit from NMFS and who wants to engage in the
fisheries must apply to the SFD for the required permit in accordance
with the following:
(i) A Southwest Region Federal Fisheries application form may be
obtained from the SFD or downloaded from the Southwest Region home page
(http://swr.nmfs.noaa.gov/permits.htm) 
to apply for a permit
under this section. A completed application is one that contains all the
necessary information and signatures required.
(ii) A minimum of 15 days should be allowed for processing 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.
(iii) A permit will be issued by the SFD. If an application is
denied, the SFD will indicate the reasons for denial.
(iv) Appeals. (A) Any applicant for an initial permit may appeal
the initial issuance decision to the RA. To be considered by the RA,
such appeal must be in writing and state the reasons for the appeal,
and must be submitted within 30 days of the action by the RA. The
appellant may request an informal hearing on the appeal.
(B) Upon receipt of an appeal authorized by this section, the RA
will notify the permit applicant, or permit holder as appropriate, and
will request such additional information and in such form as will allow
action upon the appeal.
(C) Upon receipt of sufficient information, the RA will decide the
appeal in accordance with the permit provisions set forth in this
section at the time of the application, based upon information relative
to the application on file at NMFS and the Council and any additional
information submitted to or obtained by the RA, the summary record kept
of any hearing and the hearing officer's recommended decision, if any,
and such other considerations as the RA deems appropriate. The RA will
notify all interested persons of the decision, and the reasons for the
decision, in writing, normally within 30 days of the receipt of
sufficient information, unless additional time is needed for a hearing.
(D) If a hearing is requested, or if the RA determines that one is
appropriate, the RA may grant an informal hearing before a hearing
officer designated for that purpose after first giving notice of the
time, place, and subject matter of the hearing to the applicant. The
appellant, and, at the discretion of the hearing officer, other
interested persons, may appear personally or be represented by counsel
at the hearing and submit information and present arguments as
determined appropriate by the hearing officer. Within 30 days of the
last day of the hearing, the hearing officer shall recommend in writing
a decision to the RA.
(E) The RA may adopt the hearing officer's recommended decision, in
whole or in part, or may reject or modify it. In any event, the RA will
notify interested persons of the decision, and the reason(s) therefore,
in writing, within 30 days of receipt of the hearing officer's
recommended decision. The RA's decision will constitute the final
administrative action by NMFS on the matter.
(F) Any time limit prescribed in this section may be extended for a
period not to exceed 30 days by the RA for good cause, either upon his
or her own motion or upon written request from the appellant stating
the reason(s) therefore.
(4) Permits issued under this subpart will remain valid until the
first date of renewal, and permits may subsequently be renewed for 2-
year terms. The renewal date will be the last day of the month
designated by the last digit of the vessel identification number (e.g.,
if the vessel identification number ends in 3, the renewal date is
March 31, 2 years later). The first renewal requirement will occur
after the first year of the initial permit but before the end of the
second year of the initial permit.
(5) Replacement permits may be issued without charge to replace
lost or mutilated permits. An application for a replacement permit is
not considered a new application.
(6) Any permit that has been altered, erased, or mutilated is invalid.
(c) Display. 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
shoreward of the outer boundary of the fishery management area unless
the vessel was at sea at the time the permit was issued. 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 report forms provided by the Regional
Administrator or a state agency. All information specified on the forms
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.
(1) Logbooks that meet the logbook reporting requirement may be
found at http://swr.nmfs.noaa.gov/logbooks.htm and include:
(i) The logbook required under 50 CFR 300.21 implementing the Tuna
Conventions Act of 1950;
(ii) The logbook required under Sec. 660.14 implementing the
Fishery Management Plan for Pelagic Fisheries of the Western Pacific
Region;
(iii) The logbook required by 50 CFR 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 submit logbooks under any
of the above authorities must submit a written request to the SFD for
the appropriate logbook. The applicant must provide his or her name and
address, the name of
[[Page 18458]]
the vessel, and the type of fishing gear used.
(3) The Regional Administrator may, after consultation with the
Council, act to modify the information to be provided on the fishing
record 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 on
any necessary harvest guidelines, quotas, or other management measures
and make its recommendations to NMFS.
(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 on March 31 of each year at
2400 hours local time.
(c) Harvest guidelines, quotas, and other management measures
announced for a particular year will be 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
propose management action to protect HMS 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. NMFS will
implement the new schedule 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 individual
sharks of the species in the management unit, whichever is greater.
(3) Trawl and pot gear vessels may land up to 1 percent by weight
of management unit sharks in a landing of all species or 2 individual
sharks of the species in the management unit, whichever is greater.
(c) Marlin prohibition. The sale of striped marlin by a vessel with
a permit under this subpart is prohibited.
(d) Sea turtle handling and resuscitation. All sea turtles taken
incidentally in fishing operations by any HMS vessel other than vessels
subject to Sec. 660.712 must be handled in accordance with 50 CFR
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 make shallow sets with 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 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.).
(11) Owners and operators of longline vessels registered for use of
longline gear are subject to the provisions at 50 CFR part 223
prohibiting shallow sets to target swordfish in waters beyond the U.S.
EEZ and east of 150[deg] W. long. and establishing that no more than 10
swordfish may be landed by a longline
[[Page 18459]]
vessel registered for use of longline gear from a trip if any sets of
longline gear were made on that trip in those waters.
(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
paragraph (b)(2) of this section, dip nets meeting minimum standards
specified in paragraph (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 paragraphs (b)(4) through
(b)(7) 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 to Sec. 660.32). 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 50 CFR 223.206(d)(1), 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;
(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:
[[Page 18460]]
(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)(9)
through (c)(14) of this section.
(9) Place the bird in a safe enclosed place;
(10) 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;
(11) Follow the veterinary guidance regarding the handling and
release of the bird.
(12) Complete the short-tailed albatross recovery data form issued
by NMFS.
(13) 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:
(i) Able to hold its head erect and respond to noise and motion
stimuli;
(ii) Able to breathe without noise;
(iii) Capable of flapping and retracting both wings to normal
folded position on its back;
(iv) Able to stand on both feet with toes pointed forward; and
(v) Feathers are dry.
(14) If released under paragraph (c)(13) of this section or under
the guidance of a veterinarian, all released birds must be placed on
the sea surface.
(15) 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.
(16) Complete the short-tailed albatross recovery data form issued
by NMFS.
(17) 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) A longline permit holder will 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.
(f) An operator of a vessel registered for use of longline gear
must notify the Regional Administrator at least 24 hours prior to
embarking on a fishing trip regardless of the intended area of fishing.
(g) An operator of a vessel registered for use of longline gear in
waters east of 150[deg]
W. long. and beyond the EEZ is subject to the
requirements at 50 CFR part 223.
Sec. 660.713 Drift gillnet fishery.
(a) Take Reduction Plan gear restrictions. Gear restrictions
resulting from the Pacific Offshore Cetacean Take Reduction Plan
established under the authority of the Marine Mammal Protection Act of
1972 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 (1828 m).
(2) Up to 1,500 ft (457 m) of drift gillnet in separate panels of
600 ft (182.88 m) may be on board the vessel in a storage area.
(c) Protected Resource Area closures. (1) Pacific leatherback
conservation area. 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:
(i) Pt. Sur at 36[deg]
18.5' N. lat., to
(ii) 34[deg]
27' N. lat. 123[deg]
35' W. long., to
(iii) 34[deg]
27' N. lat. 129[deg]
W. long., to
(iv) 45[deg]
N. lat. 129[deg]
W. long., thence to
[[Page 18461]]
(v) the point where 45[deg]
N. lat. intersects the Oregon coast.
(2) Pacific loggerhead conservation area. No person may fish with,
set, or haul back drift gillnet gear in U.S. waters of the Pacific
Ocean east of the 120[deg]
W. meridian from June 1 through August 31
during a forecasted, or occurring, El Nino event off the coast of
southern California.
(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 nautical 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, CA.
(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,
CA, 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 to Noonday Rock, to Southeast
Farallon Island to Pillar Point, CA.
(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, CA, and a line extending 6 nautical miles
east of Cardwell Point, CA.
(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, CA,
and a line extending 10 nautical miles east of Cardwell Point, CA.
(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, CA, and a line extending 6 nautical miles east
of Skunk Point, CA, 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, CA.
Sec. 660.714 Purse seine fishery. [Reserved]
Sec. 660.715 Harpoon fishery. [Reserved]
Sec. 660.716 Surface hook-and-line fishery. [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 (EFP) for the harvest of HMS 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 50 CFR 600.745.
Sec. 660.719 Scientific observers.
(a) All fishing vessels with permits issued under this subpart and
operating in HMS fisheries, including catcher/processors, at-sea
processors, and vessels that embark from a port in Washington, Oregon,
or California and land catch in another area, may be required to
accommodate an NMFS certified observer on board to collect scientific data.
(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 in response to any pre-trip notification in
this subpart.
(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
[[Page 18462]]
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
this section. 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.
Sec. 660.720 Interim protection for sea turtles.
(a) Until the effective date of Sec. Sec. 660.707 and 660.712 (d)
and (e), it is unlawful for any person who is not operating under a
Hawaii longline limited access permit under Sec. 660.21(b) to do any
of the following:
(1) Direct fishing effort toward the harvest of swordfish (Xiphias
gladius) using longline gear deployed on the high seas of the Pacific
Ocean west of 150[deg] W. long. and north of the equator (0[deg] lat.).
(2) Possess a light stick on board a longline vessel on the high
seas of the Pacific Ocean west of 150[deg] W. long. north of the
equator. A light stick as used in this paragraph is any type of light
emitting device, including any fluorescent glow bead, chemical, or
electrically powered light that is affixed underwater to the longline gear.
(3) An operator of a longline vessel subject to this section may
land or possess 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.).
(4) Fail to employ basket-style longline gear such that the
mainline is deployed slack when fishing on the high seas of the Pacific
Ocean west of 150[deg] W. long. north of the equator.
(5) When a conventional monofilament longline is deployed by a
vessel subject to this section, no fewer than 15 branch lines may be
set 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 west of 150[deg] W. long. north of the
equator.
(6) Longline gear deployed by a vessel subject to this section 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.
(b) [Reserved]
[FR Doc. 04-7247 Filed 4-6-04; 8:45 am]
BILLING CODE 3510-22-S
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