[Federal Register Volume 88, Number 199 (Tuesday, October 17, 2023)]
[Proposed Rules]
[Pages 71523-71526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22799]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 231010-0243]
RIN 0648-BL34


Pacific Island Fisheries; Modification of Seabird Interaction 
Mitigation Measures in the Hawaii Deep-Set Longline Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to modify seabird interaction mitigation 
measures to require federally permitted Hawaii deep-set longline 
vessels that set fishing gear from the stern to use a tori line (bird 
scaring streamer) in place of the currently required thawed, blue-dyed 
bait and strategic offal (fish, fish parts, or spent bait) discharge 
when fishing above 23[deg] N latitude. This action is expected to 
improve the overall efficacy and operational practicality of required 
seabird mitigation measures by reducing seabird bycatch and creating 
operational and administrative efficiency for fishermen and NMFS.

DATES: NMFS must receive comments by November 16, 2023.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2022-0131, by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2022-0131 in the Search box, click the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.

[[Page 71524]]

    <bullet> Mail: Send written comments to Sarah Malloy, Acting 
Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 
1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    The Western Pacific Fishery Management Council and NMFS prepared a 
draft environmental assessment and regulatory impact review that 
supports this proposed rule. The draft environmental assessment is 
available at www.regulations.gov, or from the Council, 1164 Bishop St., 
Suite 1400, Honolulu, HI 96813, 808-522-8220, or www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Lynn Rassel, PIRO Sustainable 
Fisheries, 808-725-5036.

SUPPLEMENTARY INFORMATION: NMFS and the Western Pacific Fishery 
Management Council (Council) manage the Hawaii deep-set longline 
fishery under the Fishery Ecosystem Plan for Pelagic Fisheries of the 
Western Pacific (FEP). The implementing Federal regulations for this 
fishery include a suite of conservation and management requirements. 
Since 1994, the NMFS Pacific Islands Regional Office Observer Program 
has monitored seabird interactions in the Hawaii longline fisheries. In 
response to large numbers of seabird interactions, NMFS implemented a 
suite of seabird mitigation requirements in 2001. The current seabird 
requirements, including the use of thawed, blue-dyed bait and strategic 
offal discharge, began in 2002 (67 FR 34408, May 14, 2002) and were 
revised in 2005 (70 FR 75075, December 19, 2005). These requirements 
resulted in the reduction of seabird interactions by 70-90 percent. 
However, seabird interactions in the Hawaii longline fisheries 
gradually increased in the subsequent years, with significant increases 
in black-footed albatross interactions in the deep-set fishery since 
2015.
    In 2017, the Council held a workshop to explore the cause of the 
increasing interactions with black-footed albatross. The workshop 
suggested that a positive (warm) Pacific Decadal Oscillation, with its 
cooler sea surface in the western Pacific and stronger westerly winds, 
may increase the overlap of fishing effort and black-footed albatross 
foraging grounds, leading to more seabird interactions in the fishery. 
In 2018, the Council held a follow-up workshop to review seabird 
mitigation requirements and identify research needed to inform 
potential future requirements to reduce interactions with seabirds. 
That workshop identified certain mitigation measures, including tori 
lines, as a high priority for further research and development due to 
their potential to provide an effective alternative to blue-dyed bait.
    Resulting cooperative research by the Council, the Hawaii Longline 
Association (HLA), NMFS Pacific Islands Fisheries Science Center 
(PIFSC), and NMFS Pacific Islands Regional Office in 2019-2021 
demonstrated that when tori lines are employed in lieu of blue-dyed 
bait and strategic offal discharge on deep-set longline vessels that 
set from the stern, albatross attempts are 1.5 times less likely, 
contacts are 4 times less likely, and captures are 14 times less 
likely. Furthermore, there is inconclusive evidence that the existing 
strategic offal discharge requirements reduce seabird interaction risk, 
and the requirement is associated with heavy administrative burdens to 
the Pacific Islands Region Observer Program and NOAA Office of Law 
Enforcement. Similarly, use of blue-dyed bait is burdensome due to the 
amount of time required to thaw and dye the bait, thawed bait loss from 
hooks, vessel maintenance costs related to using vats of blue dye, and 
the administrative burden to monitor and enforce consistent application 
of blue dye. We note that this proposed action would only modify 
seabird mitigation requirements for the Hawaii deep-set fishery; 
however, research on mitigation measures is currently underway in the 
Hawaii shallow-set fishery.
    At its 189th meeting in December 2021, the Council recommended 
replacing thawed, blue-dyed bait and strategic offal discharge 
requirements for stern-setting deep-set longline vessels with a new 
requirement to use a tori line that meets certain design and material 
specifications. In lieu of a regulatory requirement to strategically 
discharge offal, the Council recommended implementing best practices 
training on offal management as part of the required annual protected 
species workshop.
    Pursuant to the Council's recommendations, NMFS proposes to require 
deep-set longline vessels that stern-set to employ a tori line system 
instead of using thawed, blue-dyed bait and strategic offal discharge 
when fishing north of 23[deg] N latitude. These measures would modify 
the requirements implemented at 50 CFR 665.815. NMFS also proposes to 
require that vessels deploy a tori line system that meets required 
material, length, and position specifications prior to the first hook 
being set.
    All Hawaii longline vessels would continue to be required to follow 
other existing seabird handling and release requirements at 50 CFR 
665.815(b) and (c) to maximize the chances of post-release survival of 
seabirds that are caught alive, and to be certified for the completion 
of an annual protected species workshop conducted by NMFS (50 CFR 
665.814). All other measures applicable to longline fisheries under the 
FEP would remain unchanged. This proposed rule and any related tori 
line design guidelines would also be consistent with seabird mitigation 
requirements set forth by the Western and Central Pacific Fisheries 
Commission (WCPFC) and the Inter-American Tropical Tuna Commission 
(IATTC) (see, https://www.iattc.org/PDFFiles/Resolutions/IATTC/_English/C-11-02-Active_Seabirds.pdf and www.wcpfc.int/doc/wcpfc15-2018-dp16/seabird-interaction-mitigation-amendment-cmm-2017-06).
    The proposed rule would also make housekeeping changes at 50 CFR 
665.802 to clarify prohibitions for vessels with Hawaii longline 
limited access permits. Specifically, the proposed rule would improve 
descriptions of which vessels the prohibitions apply to. The proposed 
rule would also correct the omission of a prohibition for side-setting 
(setting the mainline from the port or starboard side of the vessel at 
least one meter from the stern) without a bird curtain and weighted 
branch lines.
    NMFS will consider public comments on this proposed rule and will 
announce the final rule in the Federal Register. NMFS must receive 
comments on this proposed action by the date provided in the DATES 
heading. NMFS may not consider comments postmarked or otherwise 
transmitted after that date. Regardless of the final rule, all other 
existing management measures would continue to apply in the longline 
fisheries.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery

[[Page 71525]]

Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.

Certification of Finding of No Significant Impact on Substantial Number 
of Small Entities

    The Chief Counsel for Regulation for the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The proposed rule would modify seabird interaction mitigation 
measures to require Hawaii deep-set longline fishing vessels that set 
fishing gear from the stern to use a tori line (bird scaring streamer) 
with associated tori line design and material specifications in place 
of the current thawed, blue-dyed bait and strategic offal (fish, fish 
parts, or spent bait) discharge requirements when fishing north of 
23[deg] N latitude. In lieu of the existing strategic offal discharge 
requirement, best practices on offal management would become part of 
the already required annual protected species workshop conducted by 
NMFS for longline vessel owners and operators. In this workshop, vessel 
owners and operators receive training on interaction mitigation 
techniques for sea turtles, seabirds, marine mammals, and other 
protected species. Such best practices for offal management include, 
among others, discharging offal from the opposite side of the vessel 
from where gear is being hauled while seabirds are actively pursuing 
the baited hooks. This action, together with best practices training, 
is expected to improve the overall efficacy and operational 
practicality of required seabird mitigation measures while reducing 
seabird bycatch.
    Under the proposed action, fishery participants who currently use 
blue-dyed bait while stern-setting when fishing north of 23[deg] N 
latitude would be required to either use tori lines or switch to side-
setting. Many deep-set longline fishery participants perceive meeting 
the current blue-dyed bait requirement as burdensome and have expressed 
interest in using tori lines instead. A small portion of participants 
may initially favor blue-dyed bait over tori lines due to its 
familiarity and perceived uncertainty associated with a new measure. 
Hawaii longline vessel design does not allow a vessel to easily convert 
between stern-setting and side-setting without considerable and costly 
modifications. Vessels that side-set fishing gear make up a small 
proportion of the Hawaii longline fisheries and are already required by 
regulations at 50 CFR 665.815(a)(1)(vii) to, among other mitigation 
measures, deploy a bird curtain with streamers that operate similarly 
to a tori line used in stern-setting. For all of these reasons, NMFS 
expects that most of the stern-setting vessels will switch to tori 
lines if they have not already, rather than continuing to use blue-dyed 
bait or convert to side-setting.
    Each tori line is expected to cost roughly $350 (inclusive of 
materials and labor), and a tori pole constructed of marine-grade 
stainless steel is expected to cost approximately $375 (inclusive of 
materials and labor). Tori lines meeting the required design 
specifications are not currently sold commercially but can be assembled 
by vessel operators and crew using materials available for purchase 
from local retailers or online. Although NMFS expects that tori lines 
may need to be replaced once every few years, the tori pole would 
likely last longer, given its construction using marine grade stainless 
steel and the use of a break-away point for the tori line that should 
also protect the pole from breaking. Deep-set longline vessels would be 
required to have two tori lines onboard at the start of every trip, so 
the initial cost per vessel would be $1,075 (one tori pole and two tori 
lines), with a recurring cost of $375 to replace a tori line once every 
few years. Using 2021 cost and revenue information, the initial cost of 
outfitting a deep-set longline vessel with tori lines represents 
approximately 0.1 percent of the annual revenue, and approximately 3.5 
percent of gear cost. However, compliance costs associated with tori 
line requirements would be partially offset by the removal of the blue-
dyed bait requirement at an estimated $334 per year per vessel.
    Removing the offal discharge requirement would alleviate fishery 
participants' burden of retaining offal from the haul to discharge 
during the set. The recommended best practice of discharging offal from 
the opposite side of the vessel from where gear is being hauled while 
seabirds are actively pursuing the baited hooks, rather than when they 
are simply present, removes fishery participants' burden of 
strategically discharging at unnecessary times. These best practices 
are closely in line with current fishing operations, as well as how 
they would occur in the absence of the current discharge requirement.
    For Regulatory Flexibility Act (RFA) purposes only, NMFS has 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial finfish fishing 
(NAICS code 114111) is classified as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation, and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. The proposed 
action would apply to the Hawaii deep-set longline fishermen who stern-
set when fishing north of 23[deg] N latitude. Based on available 
information and using individual vessels as proxies for individual 
businesses, NMFS has determined that all affected entities are small 
entities (i.e., they are engaged in the business of fish harvesting, 
are independently-owned or operated, and are not dominant in their 
field of operation). In 2021, active deep-set longline vessels averaged 
$743,151 in revenue and gross receipts did not exceed $11 million. 
There would be no disproportionate economic impacts between large and 
small entities. Furthermore, there would be no disproportionate 
economic impacts on the relevant vessels based on gear, home port, or 
vessel length. The Hawaii-based longline fisheries are managed under a 
single limited access fishery with a maximum of 164 vessel permits; it 
consists of a deep-set component that targets bigeye tuna and a 
shallow-set component that targets swordfish. The number of vessels 
participating in the deep-set longline fishery each year from 2019-2021 
varied from 146 to 149. In 2021, 146 of these vessels made about 1,679 
deep-set trips and almost 22,074 sets during these trips.
    For the reasons above, the proposed action is not expected to have 
a significant economic impact on a substantial number of small 
entities, either through a significant loss in landings or expenses 
incurred. As such, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule does not contain a collection-of-information 
requirement and thus requires no review under the Paperwork Reduction 
Act.

List of Subjects in 50 CFR Part 665

    Fisheries, Fishing, Hawaii, Longline, seabird mitigation, Pacific 
Islands, Western Pacific.


[[Page 71526]]


    Dated: October 11, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 665 as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR part 665 continues to read as 
follows:

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

0
2. Amend Sec.  665.802 by revising paragraph (z), adding paragraph 
(ll), and revising paragraphs (mm) through (qq) to read as follows:


Sec.  665.802  Prohibitions.

* * * * *
    (z) Fail to fish in accordance with the seabird take mitigation 
techniques set forth at Sec. Sec.  665.815(a) when operating a vessel 
registered for use under a Hawaii longline limited access permit.
* * * * *
    (ll) Fail to use weighted branch lines or a bird curtain that meets 
the specifications of 50 CFR 665.815(a)(1)(i) through(vii) when 
operating a side-setting vessel that is registered for use under a 
Hawaii longline limited access permit, when making deep-sets or 
shallow-sets north of 23[deg] N lat., or shallow-sets south of 23[deg] 
N lat. in violation of Sec.  665.815(a)(1).
    (mm) Fail to use a line shooter with weighted branch lines to set 
the main longline, and fail to use a tori line system prior to the 
first hook being set that meets the specifications of 50 CFR 
665.815(a)(3)(i)(A) through (E) when operating a stern-setting vessel 
that is registered for use under a Hawaii longline limited access 
permit and equipped with monofilament main longline, when making deep-
sets north of 23[deg] N lat. in violation of Sec.  665.815(a)(3).
    (nn) Fail to employ basket-style longline gear such that the 
mainline is deployed slack when operating a vessel registered for use 
under a Hawaii longline limited access permit north of 23[deg] N lat., 
in violation of Sec.  665.815(a)(4).
    (oo) Fail to maintain and use blue dye to prepare thawed bait when 
operating a stern-setting vessel registered for use under a Hawaii 
longline limited access permit when making shallow-sets, in violation 
of Sec.  665.815(a)(2)(vi) through (vii).
    (pp) Fail to retain, handle, and discharge fish, fish parts, and 
spent bait, strategically when operating a stern-setting vessel 
registered for use under a Hawaii longline limited access permit when 
making shallow-sets, in violation of Sec.  665.815(a)(2)(i) through 
(iv).
    (qq) Fail to begin the deployment of longline gear at least 1 hour 
after local sunset or fail to complete the setting process before local 
sunrise from a stern-setting vessel registered for use under a Hawaii 
longline limited access permit while shallow-setting, in violation of 
Sec.  665.815(a)(2)(v).
* * * * *
0
3. Amend Sec.  665.815 by revising (a) introductory text; (a)(2) 
introductory paragraph, paragraphs (a)(2)(v) and (viii); and (a)(3), to 
read as follows:


Sec.  665.815  Pelagic longline seabird mitigation measures.

    (a) Seabird mitigation techniques. When deep-setting or shallow-
setting north of 23[deg] N lat. or shallow-setting south of 23[deg] N 
lat., owners and operators of vessels registered for use under a Hawaii 
longline limited access permit, must either side-set according to 
paragraph (a)(1) of this section, or fish in accordance with paragraphs 
(a)(2) through (4), as applicable, of this section.
* * * * *
    (2) Alternative to side-setting when shallow-setting. Owners and 
operators of vessels engaged in shallow-setting that do not side-set 
must do the following:
* * * * *
    (v) Begin the deployment of longline gear at least 1 hour after 
local sunset and complete the deployment no later than local sunrise, 
using only the minimum vessel lights to conform with navigation rules 
and best safety practices;
* * * * *
    (viii) Follow the requirements in paragraphs (a)(4) of this 
section, as applicable.
    (3) Alternative to side-setting when deep-setting. Owners and 
operators of vessels engaged in deep-setting using a monofilament main 
longline north of 23[deg] N lat. that do not side-set must do the 
following:
    (i) Employ a tori line system, prior to the first hook being set, 
that meets the following specifications:
    (A) Length and material. The tori line must have an aerial section 
with a minimum length of 50 m (164 ft) and be made of ultra-high 
molecular weight polyethylene, or other NMFS-approved material that is 
light-weight, water resistant, low stretch, and floats in water. The 
tori line must have a drag section made of a 6 millimeters or larger 
braided material that is water resistant and floats in water. 
Monofilament nylon is prohibited for use in the aerial or drag sections 
of the tori line. The tori line must have a minimum total length of 100 
m (328 ft).
    (B) Streamer configuration. The aerial section of the tori line 
must have light-weight material (hereafter referred to as (streamers) 
that are attached to the aerial section at intervals less than 1 m (3.3 
ft) apart. Each streamer must have a length of at least 30 cm (11.8 in) 
from its attachment point to the tori line so that it hangs and moves 
freely/flutters in the wind. Where a single streamer is either threaded 
through or tied to the tori line, each length must measure at least 30 
cm (11. in). Streamers are not required for the last 20 m (65.6 ft) of 
the aerial section to minimize entanglements with buoys and fishing 
gear.
    (C) Number. Two tori lines meeting the specifications in paragraphs 
(a)(3)(i)(A) and (a)(3)(i)(B) of this section must be present on the 
vessel at the start of every trip.
    (D) Attachment point and material. The aerial section of the tori 
line must be attached to the vessel or a fixed structure on the vessel 
made of rigid material. A weak link must be placed between the tori 
line and the point of attachment so that the tori line will break away 
from the point of attachment if gear entanglement creates tension on 
the tori line. The attachment point must have a minimum height of 5 m 
(16.4 ft) above the water when the attachment point is located within 2 
m (6.6 ft) of the vessel stern. When the attachment point is more than 
2 m (6.6 ft) from the stern, the attachment point height must be 
increased by 0.5 m (1.6 ft) for every 5 m (16.4 ft) distance from the 
stern.
    (E) Attachment point height exemption. If the structure used to 
attach the tori line breaks during a trip, the operator may use an 
alternative attachment point at the highest possible point on the 
vessel that is lower than the height specified in paragraph 
(a)(3)(i)(D) of this section to continue fishing north of 23[deg] N 
lat. The exemption is only valid during the trip in which the structure 
broke.
    (ii) Employ a line shooter; and
    (iii) Attach a weight of at least 45 g (1.6 oz) to each branch line 
within 1 m (3.3 ft) of the hook.
    (4) Basket-style longline gear requirement. When using basket-style 
longline gear north of 23[deg] N lat., owners and operators of vessels 
that do not side-set must ensure that the main longline is deployed 
slack to maximize its sink rate.
* * * * *
[FR Doc. 2023-22799 Filed 10-16-23; 8:45 am]
BILLING CODE 3510-22-P