[Federal Register Volume 65, Number 214 (Friday, November 3, 2000)]
[Rules and Regulations]
[Pages 66186-66188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28278]



[[Page 66186]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 000822244-0291-02; I.D. 082100B]
RIN 0648-AO66


Fisheries off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; Hawaii-based Pelagic Longline Area 
Closure

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

ACTION: Emergency interim rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS makes changes to an emergency interim rule published on 
August 25, 2000, governing the Hawaii-based pelagic longline fishery. 
The changes, which are only applicable to the Hawaii-based pelagic 
longline fishery when fishing in Area C, as designated under that rule, 
expressly prohibit directing longline fishing effort toward the harvest 
of swordfish. The changes require vessels to set their main longline so 
that the deepest point between any two floats is greater than 100 m 
(328.1 ft), prohibit the possession of lightsticks on board vessels, 
require permit holders or operators to donate to charity at least 30 
percent of their gross revenues from the sale of incidentally caught 
swordfish, and require each longline vessel operator to have aboard the 
vessel an observer waiver form issued by NMFS if the vessel fishes 
without an observer. The intent of this action is to ensure that 
swordfish are not targeted by the Hawaii longline fishery in Area C and 
to reduce adverse impacts on sea turtles while NMFS prepares a 
comprehensive environmental impact statement (EIS) that analyzes the 
environmental effects of fishing activities conducted under the Fishery 
Management Plan for the Pelagic Fisheries of the Western Pacific Region 
(FMP).

DATES: This emergency interim rule is effective from November 3, 2000, 
through February 21, 2001, except for the suspension of Sec. 660.22 
(hh) and Sec. 660.33 (d)(4), and for the addition of Sec. 660.22 (kk) 
and Sec. 660.33 (d)(7), which are effective December 4, 2000 through 
February 21, 2001. Comments must be received no later than 5 p.m., 
local time, on December 18, 2000.

ADDRESSES: Written comments on this action must be mailed to Dr. 
Charles Karnella, Administrator, NMFS, Pacific Islands Area Office 
(PIAO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700; or 
faxed to 808-973-2941. Comments will not be accepted if submitted via 
e-mail or the Internet. Copies of the regulatory impact review (RIR) 
may be obtained from Dr. Charles Karnella, PIAO. Send comments 
regarding any ambiguity or unnecessary complexity arising from the 
language used in this rule to Dr. Charles Karnella.

FOR FURTHER INFORMATION CONTACT: Alvin Katekaru at 808-973-2937.

SUPPLEMENTARY INFORMATION: By this action, NMFS changes an emergency 
interim rule (65 FR 51992) published on August 25, 2000, governing the 
Hawaii-based pelagic longline fishery. These changes apply only to the 
Hawaii-based longline fishery operating in Area C, one of the three 
designated longline fishing restricted areas established by the August 
25, 2000, emergency interim rule. Area C, which encompasses the main 
and Northwestern Hawaiian Islands, is defined as all waters bounded on 
the south by 0 deg. lat., on the north by 28 deg. N. lat., on the east 
by 137 deg. W. long., and on the west by 173 deg. E. long.. NMFS makes 
these changes in response to allegations made by Plaintiffs in Center 
for Marine Conservation v. NMFS, Civ. No. 99-00152 (DAE) that NMFS did 
not adequately comply with the August 4, 2000, Order Further Amending 
Order Modifying Provisions of Order of Injunction (August 4, 2000, 
Order) issued by the U.S. District Court for the District of Hawaii 
(Court). Plaintiffs complained to the Court that the August 25, 2000, 
emergency interim rule did not ensure that swordfish would not be 
targeted by the Hawaii-based longline fishery in Area C. Further, 
Plaintiffs alleged that the 20-percent standard that NMFS used to 
implement the Court's requirement that any ``profits'' from the landing 
and sale of swordfish incidentally caught in Area C be ``donated to 
charity'', did not ensure that all profits would be donated to charity.
    The intent of the August 25, 2000, emergency interim rule was to 
prohibit any fishing activity by the Hawaii-based longline fishery in 
Area C that targeted swordfish. To clarify that intent, NMFS is hereby 
revising that rule to expressly prohibit directing any longline fishing 
effort toward the harvest of swordfish in Area C. NMFS also is revising 
that rule to require vessels registered for use with a Hawaii longline 
limited access permit and fishing for pelagic management unit species 
in Area C, to deploy longline gear so that the deepest point of the 
longline between any two floats reaches a depth greater than 100 m 
(328.1 ft) below the sea surface. This change is intended to ensure 
that hooks are not set at shallow depths where they would target 
swordfish. Longline sets are identified as shallow or deep depending on 
how deep the main longline sags between floats. In a study conducted by 
NMFS on longline gear sag depths in the Hawaii pelagic longline 
fishery, it was found that 95 percent of the shallow sets had mainline 
sag depths shallower than 101 m (331.4 ft), with an average of 52.2 m 
(171.3 ft). Nearly 90 percent of the swordfish harvested in Area C were 
caught in shallow sets. On the other hand, 95 percent of the deep 
longline sets targeting bigeye tuna had a mainline sag depth deeper 
than 109 m (357.6 ft), with an average of 221 m (725.1 ft). NMFS has 
determined that requiring vessels to deploy their longlines so that the 
deepest part of the mainline between any two floats is at a depth 
greater than 100 m (328.1 ft) will effectively prevent them from 
targeting swordfish.
    Finally, NMFS is changing the provision in the August 25, 2000, 
emergency interim rule requiring that 20 percent of the gross revenue 
from the sale of swordfish caught incidentally in Area C be donated to 
IRS-approved charitable organizations to a provision requiring that at 
least 30 percent of the gross revenue from the sale of all such 
swordfish be donated to IRS-approved charitable organizations. This 
change will ensure that fishery participants have no economic incentive 
to target swordfish in Area C. The 30 percent of gross revenues 
standard is much higher then the 3.7-percent profit margin for the 
average tuna longline vessel based on total revenue less all operating 
and fixed costs. Moreover, it is also substantially higher than the 
average tuna longline vessel's 20.6-percent annual return on operating 
and repair costs.
    In addition to the changes made in response to the Plaintiff's 
complaint, NMFS is changing other provisions of the August 25, 2000, 
emergency interim rule to facilitate enforcement of the longline 
fishing restrictions in Area C. First, the measure prohibiting the use 
of lightsticks is changed to a prohibition on the possession of 
lightsticks. This provision has the same effect on the targeting of 
swordfish as a use prohibition but is easier to enforce since it relies 
on evidence of possession at any time in Area C, rather than evidence 
of actual fishing with lightsticks in Area C. Second, NMFS is adding a 
provision to require all longline vessels exempted from carrying NMFS-
approved observers for specific fishing trips to

[[Page 66187]]

have on board the vessel a valid observer waiver form issued by NMFS. 
This requirement will enable U.S. Coast Guard and NMFS enforcement 
agents to monitor compliance of the observer requirements during at-sea 
inspections of longline vessels operating in Area C.

Criteria for Issuing an Emergency Interim Rule

    This emergency interim rule meets NMFS policy guidelines for the 
use of emergency interim rules (62 FR 44421, August 21, 1997). Also, it 
realizes benefits that outweigh the value of prior notice, opportunity 
for public comment, and deliberative consideration expected under the 
normal rulemaking process.

Recent, Unforeseen Events or Recently Discovered Circumstances

    Emergency action is necessary to address, in a timely manner, 
concerns regarding NMFS's August 25, 2000 emergency interim rule 
implementing the Court's August 4, 2000 Order. Emergency action is also 
necessary to facilitate enforcement of the emergency interim rule.

Immediate Benefits

    Although there are many variables that make it difficult to predict 
the effects of this fishery upon different sea turtle populations, NMFS 
anticipates this action will have a positive benefit sea turtles by 
further reducing the potential for turtles being caught by Hawaii-based 
longline vessels.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA) has also 
determined that this emergency interim rule is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable laws. NMFS prepared an environmental 
assessment (EA) for the August 25, 2000, emergency interim rule that 
describes the impact on the human environment of that rule and found 
that no significant impact would result from the implementation of it. 
The changes made by the present action clarify the intent of that rule 
and will facilitate its enforcement. The changes will not cause any 
significant impact on the human environment.
    NMFS also prepared a regulatory impact review for the August 25, 
2000, action which assessed its economic costs and benefits. That 
assessment used calculations from an input-output model of the Hawaii 
commercial fishery (Sharma, 1999), and showed that in 1998 the Hawaii 
longline fishery (valued at $46.7 million in ex-vessel revenues) had a 
total impact on Hawaii business sales of $113 million. The changes made 
by the present action to the emergency interim rule are expected to 
have an additional impact on vessel operators who have customarily 
targeted species other than bigeye tuna, as the requirement that 
longline gear must be deployed at a depth greater than 100 m (328.1 ft) 
effectively bans the targeting, in Area C, of yellowfin tuna as well as 
swordfish. Due to the lack of detailed data, the precise economic 
impact of the new longline set depth requirement cannot be calculated. 
However NMFS longline logbook data for 1998-1999 show that 
approximately 10 percent of the sets in Area C (1,739 of 19,964) 
targeted yellowfin tuna. This includes sets taken by 74 vessels over 
the 2-year period, i.e., roughly half of all the vessels that were 
active during the 2 years.
    Nonetheless, the impact of this emergency interim rule is expected 
to be relatively small because the yellowfin tuna fishery is primarily 
a summer fishery and has ended for this year and the bigeye tuna 
fishery, a winter and spring fishery, is about to commence. This 
emergency interim rule does, however, further reduce the ability of 
swordfish fishermen to utilize similar gear-setting techniques in Area 
C and will increasingly require purchase of a line-shooter. Some 
vessels, however, will operate out of California until NMFS completes 
the EIS and the emergency interim rule is replaced by final rule.
    The Assistant Administrator for Fisheries (AA) finds, for good 
cause, that under 5 U.S.C. 553(b)(B) providing prior notice and 
opportunity for public comment for this action is unnecessary given 
that the Court ordered the actions in the August 25, 2000 emergency 
interim rule, and that this action is necessary to clarify the intent 
of the August 25, 2000 rule and to facilitate its enforcement, and the 
delay associated with providing prior notice and opportunity for public 
comment would be contrary to the public interest.
    Similarly, the AA finds, for good cause, under 5 U.S.C. 553(d)(3), 
that delaying the effectiveness of this rule for 30 days would be 
contrary to the public interest. Accordingly, the AA is making this 
rule effective upon publication in the Federal Register, except for the 
lightstick provisions. The AA is delaying the effectiveness of the 
provisions prohibiting the possession of lightsicks for 30 days to 
allow time for any vessel which has a lightstick on board during a 
current fishing trip to off-load the lightsticks when the vessel 
returns to port. This delay will not compromise the regulation's effect 
on the targeting of swordfish since the prohibition on the use of 
lightsticks will remain in effect.
    Under section 305(c) of the Magnuson-Stevens Act, this emergency 
interim rule will remain in effect for not more than 180 days (until 
February 21, 2001, based on the effective date of the emergency interim 
rule published on August 25, 2000). It may be extended for one 
additional period of not more than 180 days.
    Because this emergency interim rule is not required to be published 
with prior notice and opportunity for public comment under 5 U.S.C. 
553, or any other law, the analytical requirements of the Regulatory 
Flexibility Act do not apply.
    This emergency interim rule has been determined to be not 
significant for purposes of Executive Order 12866.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this rule (see 
ADDRESSES).

List of Subjects in 50 CFR Part 660

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

    Dated: October 30, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended 
as follows:

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

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

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

    2. In Sec. 660.22, paragraph (hh) is suspended and new paragraphs 
(kk), (ll), and (mm) are added to read as follows:


Sec. 660.22  Prohibitions.

* * * * *
    (kk) Possess lightsticks on a longline vessel within the Hawaii 
emergency longline closed Area C in violation of Sec.  660.33 (d)(7).
    (ll) Fail to carry onboard the vessel or to make available for 
inspection by an authorized officer an observer waiver form issued by 
the Administrator,

[[Page 66188]]

Pacific Islands Area Office, NMFS, or a designee of the Administrator 
as required under Sec.  660.33(e)(2).
    (mm) Direct longline fishing effort toward the harvest of swordfish 
in Hawaii emergency longline closed Area C.

    3. In Sec. 660.33, paragraphs (d)(4), (d)(5), and (e)(2) are 
suspended, and new paragraphs (d)(7), (d)(8), (d)(9), and (e)(7) are 
added to read as follows:


Sec. 660.33  Hawaii emergency closure.

* * * * *
    (d)* * *
    (7) A vessel registered for use under a Hawaii longline limited 
access permit may not possess lightsticks during a fishing trip where 
part (or all) of the trip involves fishing in Area C.
    (8) Within 30 days of each landing of swordfish caught by longline 
gear in Area C, the permit holder or operator of a vessel registered 
for use under a Hawaii longline limited access permit must donate to 
charity at least 30 percent of the total gross revenues from the sale 
of such swordfish.
    (9) Any longline gear deployed after November 3, 2000 by a vessel 
registered for use under a Hawaii longline limited access permit, 
fishing for Pacific pelagic management unit species in Area C, 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.
    (e) * * *
    (7) A vessel registered for use with a Hawaii longline access 
permit may not use longline gear in Area C without a NMFS-approved 
observer aboard the vessel, unless it is issued a written waiver on a 
per trip basis by the Administrator, Pacific Islands Area Office, NMFS, 
or a designee. The waiver must be on board the vessel and made 
available for inspection by an authorized officer at any time during 
the trip for which the waiver is valid.
* * * * *
FR Doc. 00-28278 Filed 10-31-00; 4:31 pm]
BILLING CODE 3510-22-S