[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Rules and Regulations]
[Pages 15062-15064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04236]


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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: Final rule.

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SUMMARY: In this final rule, NMFS modifies its 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 (i.e., bird scaring streamer) in place of the currently required 
thawed, blue-dyed bait and strategic offal (i.e., fish, fish parts, or 
spent bait) discharge when fishing above latitude (lat.) 23[deg] N. 
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: The final rule is effective April 1, 2024.

ADDRESSES: Copies of the Fishery Ecosystem Plan for Pelagic Fisheries 
of the Western Pacific are available from the Western Pacific Fishery 
Management Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, 
telephone 808-522-8220, fax 808-522-8226, or https://www.wpcouncil.org.
    Copies of the environmental assessment and other supporting 
documents for this action are available at https://www.regulations.gov, 
or from the Western Pacific Fishery Management Council, 1164 Bishop 
St., Suite 1400, Honolulu, HI 96813, 808-522-8220, or https://www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Lynn Rassel, Pacific Islands Regional 
Office (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. 
This fishery occasionally catches seabirds; therefore, NMFS implemented 
a suite of seabird mitigation requirements in 2001 that 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.
    Cooperative research by the Council, the Hawaii Longline 
Association, NMFS Pacific Islands Fisheries Science Center, and NMFS 
Pacific Islands Regional Office (PIRO) 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 making attempts to eat the bait off hooks are 1.5 times less 
likely, contacts with the bait 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.
    To reduce seabird bycatch and improve operational and 
administrative efficiency, NMFS will 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 lat. 
23[deg] N. These measures will modify the requirements implemented at 
50 CFR 665.815. NMFS also will require that vessels deploy a tori line 
system that meets required material, length, and position 
specifications prior to the first hook being set. We note that this 
action will 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.
    All Hawaii longline vessels will 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 will remain unchanged. This rule and related tori line design 
guidelines are consistent with seabird mitigation requirements set 
forth by the Western and Central Pacific Fisheries Commission and the 
Inter-American Tropical Tuna Commission (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 rule will also revise 50 CFR 665.802 to clarify prohibitions 
for vessels with Hawaii longline limited access permits. Specifically, 
the rule will improve descriptions of which vessels are subject to the 
prohibitions. The rule will also correct the omission of a prohibition 
for side-setting (i.e., 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.
    You may find additional background information on this action in 
the preamble to the proposed rule published on October 17, 2023 (88 FR 
71523).

Comments and Responses

    On October 17, 2023, NMFS published a proposed rule, an 
Environmental Assessment (EA), and Regulatory Impact Review (RIR) for 
public comment (88 FR 71523). The comment period ended on November 16, 
2023. NMFS received a comment letter from one nonprofit organization, 
the American Bird Conservancy (ABC). In general, ABC supported the 
proposed rule. There were no comments directed at analyses presented in 
the EA or the RIR. We summarize and respond to ABC's comments here.
    Comment 1: ABC expressed support for the proposed rule, 
specifically the use of tori lines in place of the currently required 
thawed, blue-dyed bait and strategic offal discharge when fishing above 
lat. 23[deg] N, and the housekeeping correction to reinstate the 
prohibition for side setting without a bird curtain.

[[Page 15063]]

    Response: NMFS agrees and will continue to sustainably manage and 
regulate Federal fisheries to minimize bycatch, bycatch mortality, and 
interactions with protected species, including seabirds, consistent 
with applicable law.
    Comment 2: ABC expressed support of a requirement to prohibit offal 
discharge during setting operations and therefore a preference for 
Alternative 3 in the EA which includes a modification of, rather that 
the removal of, the offal discharge requirement to an offal management 
requirement.
    Response: The main difference between Alternatives 2 and 3 is 
whether the updated offal management measure would be implemented 
through a non-regulatory best practices annual training (Alternative 2) 
or a regulatory requirement (Alternative 3). As described in detail in 
EA section 4.2.2, the Council recommended Alternative 2 because it 
determined that fishing operations in the deep-set longline fishery are 
already in line with best practices for offal management because offal 
is not generated during the set. Offal would typically be generated and 
discharged in the deep-set longline fishery during the haul, and would 
not be saved for discharge during the set in the absence of the 
existing strategic offal discharge requirement. Under Alternative 2, 
fishery participants are not likely to retain offal and spent bait from 
hauling operations, so there would be no offal or spent bait available 
during setting operations to discharge. Even without a requirement, 
offal discharge during setting operations would be an atypical 
occurrence, and it is not expected to appreciably increase seabird 
interactions.
    Furthermore, regulating best practices under Alternative 3 is 
associated with an increased administrative burden to monitor and 
enforce the regulation. Under Alternative 2, best practices will be 
taught in the protected species workshop, which is required annually 
for all deep-set longline vessel owners and captains. NMFS will be able 
to update and adapt the best practices training in accordance with the 
best scientific information available, in a manner that is more 
efficient and responsive to evolving science than changing a regulatory 
requirement. In this way, NMFS will be able to disseminate best 
practices to the fisheries' participants with less administrative 
burden and in a timelier manner than through the regulatory process.
    This rule as described in EA Alternative 2, achieves the objective 
by reducing seabird interactions with the fishery while minimizing 
unnecessary regulation.
    Comment 3: ABC recommended encouraging the use of tori lines in the 
deep-set longline fishery south of lat. 23[deg] N for the sake of 
providing international leadership.
    Response: Less than 14 percent of observed seabird interactions 
have occurred in the deep-set longline fishery south of lat. 23[deg] N 
and NMFS has determined the risk to seabirds south of lat. 23[deg] N to 
be low. However, the rule does not prohibit fishers from also using 
tori lines when they are fishing south of lat. 23[deg] N. NMFS can 
encourage fishers to use tori lines whenever seabirds are present, 
regardless of latitude, as a best practice in the protected species 
workshop training required annually for fishers.
    Comment 4: ABC encouraged NMFS to request more appropriations for 
the fisheries observer program to increase coverage to beyond 20 
percent in order to better monitor compliance of seabird mitigation 
requirements.
    Response: On October 1, 2023, NMFS changed observer coverage in the 
Hawaii deep-set longline fishery from 20 to 15 percent due to increased 
program costs and is evaluating options to manage observer efforts 
moving forward, including assessing alternative long-term options--like 
electronic technologies--to supplement monitoring and collecting 
fishery data.
    Comment 5: ABC provided two more recommendations, which are related 
to seabirds and the rulemaking process but are not directly related to 
the subject rule. These recommendations include hastening the 
rulemaking process to implement new seabird mitigation methods more 
expeditiously in the shallow set longline fishery and advocating for 
NMFS's continued support for the Agreement for the Conservation of 
Albatrosses and Petrels (ACAP).
    Response: NMFS strives for expeditious rulemaking, and adheres to 
statutory deadlines specified in the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and other 
applicable law. Tori line research is currently being conducted in the 
shallow set longline fishery under an experimental fishing permit 
issued by NMFS. The results of this research will be presented to the 
Council and NMFS after the conclusion of the project. NMFS believes 
that time spent on the research and development of new measures will 
improve the overall quality and outcome of such measures. We continue 
to support ACAP.

Changes From the Proposed Rule

    The final rule contains no changes from the proposed rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable laws.

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 during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS received no comments 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final 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.

    Dated: February 26, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 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.  665.815(a) when operating a

[[Page 15064]]

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 at Sec.  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 lat. 23[deg] N, or shallow-sets south of lat. 
23[deg] N 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 Sec.  
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 lat. 23[deg] N 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 lat. 23[deg] N, 
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) and (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 paragraphs (a) introductory text, 
(a)(2) introductory text, (a)(2)(v) and (viii), and (a)(3) and (4) to 
read as follows:


Sec.  665.815  Pelagic longline seabird mitigation measures.

    (a) Seabird mitigation techniques. When deep-setting or shallow-
setting north of lat. 23[deg] N or shallow-setting south of lat. 
23[deg] N, 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) of this section, as applicable.
* * * * *
    (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 paragraph (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 lat. 23[deg] N 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 (11.8 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 (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 lat. 23[deg] 
N. The exemption is only valid during the trip in which the structure 
broke.
    (ii) Employ a line shooter.
    (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 lat. 23[deg] N, 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. 2024-04236 Filed 2-29-24; 8:45 am]
BILLING CODE 3510-22-P