66186 Federal Register / Vol. 65, No. 214 / Friday, November 3, 2000 / Rules and Regulations

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 Hawaiibased 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 § 660.22 (hh) and

§ 660.33 (d)(4), and for the addition of

§660.22 (kk) and § 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 Hawaiibased 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° lat., on the north by

28° N. lat., on the east by 137° W. long.,

and on the west by 173° 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

Federal Register / Vol. 65, No. 214 / Friday, November 3, 2000 / Rules and Regulations 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 MagnusonStevens 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 § 660.22, paragraph (hh) is

suspended and new paragraphs (kk),

(ll), and (mm) are added to read as

follows:

§ 660.22 Prohibitions.

* * * * *

(kk) Possess lightsticks on a longline

vessel within the Hawaii emergency

longline closed Area C in violation of §

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,

66188 Federal Register / Vol. 65, No. 214 / Friday, November 3, 2000 / Rules and Regulations

Pacific Islands Area Office, NMFS, or a

designee of the Administrator as

required under § 660.33(e)(2).

(mm) Direct longline fishing effort

toward the harvest of swordfish in

Hawaii emergency longline closed Area

C.

3. In § 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:

§ 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]

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