Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 665
          - [Docket No. 220111-0010]
          - RIN 0648-BK74

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS proposes to prohibit the use of wire leaders in the Hawaii deep-set longline fishery, and require the removal of fishing gear from any oceanic whitetip shark caught in all of the region's domestic longline fisheries. The proposed action is intended to increase post-hooking survival of oceanic whitetip sharks.

# DATES:

NMFS must receive comments by February 18, 2022.

# ADDRESSES:

You may submit comments on this proposed rule, identified by NOAA-NMFS-2021-0099, by either of the following methods:
      -  Electronic Submission:                          Submit all electronic comments via the Federal e-Rulemaking Portal. Go to                          http://www.regulations.gov                          and enter NOAA-NMFS-2021-0099 in the Search box, click the “Comment” icon, complete the required fields, and enter or attach your comments.                    
      -  Mail:                          Send written comments to Michael D. Tosatto, 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 (Council) and NMFS prepared a draft environmental                               ( print page 2743)                            assessment (EA) and regulatory impact review that supports this proposed rule. The draft EA is available at                         *www.regulations.gov,*                         or from the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, or                         *www.wpcouncil.org.*

# FOR FURTHER INFORMATION CONTACT:

David O'Brien, PIRO Sustainable Fisheries, 808-725-5038.

# SUPPLEMENTARY INFORMATION:

                    NMFS and the Council manage the Hawaii (shallow-set and deep-set), America Samoa, and general western Pacific longline fisheries under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP) and implementing Federal regulations. These fisheries occasionally catch oceanic whitetip sharks (                    *Carcharhinus longimanus*), which NMFS listed as threatened under the Endangered Species Act on January 30, 2018 (83 FR 4153). To improve the survival of oceanic whitetip sharks caught unintentionally in the Hawaii deep-set fishery, this proposed rule would prohibit the use of steel wire line, known as wire leaders, within 1 meter of the hook. To improve the survival of oceanic whitetip sharks caught unintentionally in all of the region's longline fisheries, this proposed rule would also require fishermen to remove fishing gear from any oceanic whitetip shark caught, with limited exceptions related to safety and data collection. Prohibiting wire leaders may also result in reductions in adverse effects to other protected species.                

Prior to 2021, most vessels in the Hawaii deep-set fishery used wire leaders in the terminal portion of the fishing line between the hook and a weight that must be placed within 1 meter of the hook (see 50 CFR 665.815(a)(1)). The weight is typically in the form of a swivel, and helps to sink the hook quickly to reduce interactions with seabirds.

The wire leader also reduces the risk of crew injuries resulting from “fly backs.” Fly backs may occur when retrieving fishing gear (hauling) if the line under tension parts, either by breaking or being bitten through, between the hook and the weighted swivel or is thrown from a fish. In these cases, the weighted swivel flies back toward the vessel at high speed and there have been documented severe injuries and deaths of crewmembers. The use of wire leaders between the hook and the weight reduces the chance that the leader would part and fly back toward the vessel when crew are hauling the gear.

Although they reduce fly backs, wire leaders reduce the chances that sharks may bite off the line and release themselves before the crew retrieve the gear. We expect sharks that release themselves before the gear is retrieved to have reduced mortality relative to sharks that are released after being brought to the vessel. In addition, wire leaders make it difficult to remove fishing gear from sharks or other protected species that are too large to bring on board the vessel to remove the gear. Because it is difficult to cut the wire leader from deck height, fishermen typically cut the line closer to the vessel than the weighted swivel. This practice leaves the hook, wire leader, weighted swivel, and some amount of monofilament fishing line (collectively, trailing gear) attached to a released animal. Long trailing gear reduces survivorship of sharks and other released animals. Because monofilament nylon leaders are easier to cut from deck height, they can facilitate removal of trailing gear below the weighted swivel and close to the hook when releasing animals that are too large to bring on board.

To reduce impacts on oceanic whitetip sharks in the Hawaii deep-set fishery, the Hawaii Longline Association (HLA) announced in late 2020 that its members, comprising more than 90 percent of the Hawaii deep-set longline fleet of approximately 146 active vessels, would voluntarily switch from wire to monofilament leaders. At its June 2021 meeting, the Council recommended that wire leaders be prohibited in the Hawaii deep-set fishery, along with the recommendation to remove trailing gear. These recommendations were intended to ensure that all fishermen in the fleet stop using wire leaders and minimize the amount of trailing gear on oceanic whitetip sharks. NMFS estimates that these proposed requirements would reduce mortality of oceanic whitetip sharks hooked in the Hawaii deep-set fishery by approximately 30 percent due to a combination of higher post-hooking survival via bite-offs and reductions in trailing gear remaining on released animals. This proposed action would be implemented in conjunction with HLA outreach to fishery participants and NMFS protected species workshops to address safety concerns associated with gear fly back.

                    Pursuant to the Council's recommendations, NMFS proposes to prohibit wire leaders within 1 meter of each hook on Hawaii deep-set vessels. NMFS also proposes to require vessel owners, operators and crew on vessels registered for use under any of the region's longline permits to release oceanic whitetip sharks with minimal trailing gear, with limited exceptions for safety and data collection. This proposed rule and any related handling guidelines would be consistent with Western and Central Pacific Fisheries Commission best handling practices for these sharks (see                     *https://www.wcpfc.int/​doc/​supplcmm-2010-07/​best-handling-practices-safe-release-sharks-other-whale-sharks-and*), and NMFS regulations at 50 CFR 300.226.                

                    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 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 action would prohibit the use of wire leaders in the Hawaii deep-set longline fishery, and would require the removal of fishing gear from any oceanic whitetip shark caught in all of the region's domestic longline fisheries (Hawaii deep-set and shallow-set, American Samoa, and others).

                    The action would apply to vessels with Hawaii longline limited entry permits (164) and American Samoa limited entry permits (60). There has been no longline fishing in Guam or the Northern Mariana Islands since 2011. In 2020, 146 vessels participated in the Hawaii deep-set longline fishery, with annual fleet revenues of $71.5 million and average annual per-vessel revenues of $489,730. In 2020, 14 vessels participated in the Hawaii shallow-set                           ( print page 2744)                        fishery, with annual fleet revenues of $1.3 million and average annual per-vessel revenues of $92,357. In 2020, 11 vessels participated in the American Samoa fishery, with annual fleet revenues of $2.1 million, and average per-vessel revenues of $191,000.                

NMFS listed oceanic whitetip sharks as threatened under the Endangered Species Act on January 30, 2018 (83 FR 4153). The proposed management measures are designed to improve post-hooking survival of oceanic whitetip sharks in the longline fisheries. In December 2020, the HLA announced that its members, comprising most of the Hawaii deep-set longline fleet, would voluntarily switch from wire leaders to monofilament leaders in 2021. This proposed action would encourage the entire Hawaii deep-set longline fleet to transition to monofilament leaders, currently the only viable alternative to wire. It would also require that all longline fishermen operating vessels under the FEP follow specific steps in removing trailing gear, as practicable, to further enhance post-hooking survival of oceanic whitetip sharks. These proposed requirements are expected to reduce mortality of oceanic whitetip sharks due to a combination of higher post-hooking survival via bite-offs and reductions in the length of trailing gear remaining on released animals.

Most vessels in the Hawaii deep-set longline fishery had, until recently, used wire leaders to prevent potential gear fly backs and associated injury from weighted branch lines required for this fishery as a seabird mitigation measure. With the prohibition on the use of wire leaders under the proposed action, longline vessels are most likely to transition to monofilament nylon as it is the most common alternative leader material in pelagic longline fisheries, although other non-metal leaders may be used. Some, if not most, vessels in the Hawaii deep-set longline fishery are anticipated to voluntarily transition from wire leaders to monofilament leaders in advance of the regulatory requirement, following HLA's announcement. As of November 2021, most Hawaii deep-set longline fishing vessels had transitioned to monofilament leaders with many more transitioning to its use when existing wire leaders need to be replaced in the normal course of operations.

Under the proposed action, Hawaii deep-set longline fishery participants will incur upfront costs associated with changing wire leaders to monofilament nylon. The estimated range in the initial costs of replacing an entire set of wire leaders with monofilament leaders can be found by multiplying the price of each monofilament leader ($0.06-$0.17, depending on brand) by the average number of hooks. This results in an estimated average one-time material cost (averaging 2,876 hooks per vessel in 2020) for a full set of monofilament nylon leaders of $173-$489 per vessel, or a total of $25,194 to $71,382 for the entire fleet. Many deep-set longline vessels have already transitioned to monofilament nylon leaders, and more have begun to transition to monofilament nylon leaders as part of their routine replacement of leader lines. As a result, the upfront costs of transitioning to monofilament leaders upon the implementation of proposed action will not be as high for many fishermen as presented here.

The proposed action may also influence ongoing costs for maintenance and repair of fishing gear. Monofilament leaders are more susceptible to damage, abrasion, breaking, and bite-offs, which would result in more frequent repairs and replacement of longline gear. However, monofilament nylon is less expensive than wire, which may help offset the immediate costs of implementing the proposed action over the longer term. The EA used 2020 effort data and results from a research study that estimated branch line repair rates to be higher for monofilament nylon leaders (19.8 percent) compared to wire leaders (14.4 percent) to estimate differential maintenance and repair costs. In 2020, the number of hooks deployed per trip averaged 36,314 and the number of hooks deployed throughout the year averaged 408,904 across all vessels. Based on these hook numbers, the cost of repairing monofilament leaders would average from $431-$1,222 per vessel per trip, compared to an average of $2,144-$2,719 per vessel per trip to repair wire leaders. Thus, the proposed action could result in an overall decrease in leader repair material costs ranging from $922 to $2,288 per trip, or an annual decrease in leader replacement costs ranging from $1,515,186 to $3,761,100 fleetwide (based on 1,644 deep-set trips in 2020).

Most vessels in the deep-set fishery had used wire leaders to prevent potential gear fly backs and associated injuries from the weighted branch lines (required to prevent seabird interactions). This proposed action would be implemented in conjunction with HLA outreach to fishery participants and NMFS protected species workshops to address safety concerns associated with gear fly back. One initiative involves the use of a simple reusable fly back prevention device. The cost of the materials for making one device is approximately $13, with one to two of these devices needed on board a vessel during any given fishing trip.

The proposed rule also would require fishermen to remove trailing gear from captured oceanic whitetip sharks. HLA will continue to work with NMFS and the Western Pacific Fishery Management Council to disseminate handling guidelines applicable to oceanic whitetip sharks (and other protected species) for safe release with as little trailing gear attached as possible.

While fishermen in all three fisheries remove trailing gear when they catch sharks as part of their normal operations, these additional handling requirements may slightly increase the time it takes to release these sharks. However, the rarity of interactions with these sharks suggests that any increase in handling time should have negligible impact on fishing operations.

The prohibition of wire leaders, and the resulting switch to monofilament leaders, could change the catch rates of some target and non-target species in the Hawaii deep-set fishery. We expect minor increases in bigeye tuna catch rates, and slightly lower catch rates for albacore, mahimahi, and skipjack tuna. These changes are likely to be minor, however, and may result in an overall net increase in revenues for the deep-set fishery.

                    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 fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. Based on available information, NMFS has determined that all vessels permitted federally under the FEP are small entities,                     *i.e.,*                     they are engaged in the business of fish harvesting (NAICS 114111), are independently owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $11 million. Even though this proposed action would apply to a substantial number of vessels, the implementation of this action would not result in significant adverse economic impact to individual vessels. The proposed action would potentially reduce adverse effects on threatened oceanic whitetip sharks and other protected species, as well as potentially                           ( print page 2745)                        Hawaii deep-set longline fishermen with minor increases in catch rate for target bigeye tuna.                

                    Under the proposed action, we do not expect the region's domestic longline fisheries to change substantially (                    *i.e.,*                     area fished, number of vessels and trips, number and depth of hooks, or deployment techniques). The proposed action does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed action based on gear type or relative vessel size. The proposed action also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.                

For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. 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

      - American Samoa
      - Endangered and threatened species
      - Fisheries
      - Fishing
      - Hawaii
      - Longline
      - Oceanic whitetip shark
      - Pacific Islands
      - Release requirements
      - Western Pacific

Dated: January 12, 2022.

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

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

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

2. In § 665.800, revise the definition of “Deep-set or Deep-setting” to read as follows: 

§ 665.800 

* * * * *

*Deep-set or Deep-setting*                         means the deployment of longline gear in a manner consistent with all the following criteria: All float lines are at least 20 meters in length; a minimum of 15 branch lines are attached between any two floats (except basket-style longline gear which may have as few as 10 branch lines between any two floats); no metal wire line within 1 meter of the hook; and no light sticks are used. As used in this definition, “float line” means a line used to suspend the main longline beneath a float, and “light stick” means 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. In § 665.802, add paragraphs (gg) and (hh) to read as follows: 

§ 665.802 

* * * * *

(gg) Use or have on board longline gear with metal wire line within 1 meter of the hook when operating a vessel registered for use under a longline permit issued under § 665.801(b) at any time during a trip for which notification to NMFS under § 665.803(a) indicated that deep-setting would be done, in violation of § 665.813(d).

(hh) Fail to handle and release an oceanic whitetip shark in accordance with the requirements set forth at § 665.811(a) when operating a vessel registered for use under any longline permit issued under § 665.801, in violation of § 665.811.

* * * * *

4. Add § 665.811 to read as follows: 

§ 665.811 

(a) The owner and operator of a vessel registered for use under any longline permit issued under § 665.801 must release any oceanic whitetip shark as soon as possible after the shark is caught and brought alongside the vessel, in accordance with § 300.226 of this title, and must take the following actions:

(1) Leave the animal in the water.

(2) Use a dehooker as defined in § 665.812(a)(7), or line clippers as defined in § 665.812(a)(5), to remove trailing gear from the animal.

(3) When using line clippers, cut the branch line as close to the hook as possible.

(b) Paragraph (a) of this section shall not apply if doing so would compromise the safety of any person, or if a NMFS observer collects, or requests assistance collecting, samples of oceanic whitetip shark, or if a WCPFC observer collects, or requests assistance collecting, samples of oceanic whitetip shark in the Convention Area, as defined in § 300.211 of this title and in accordance with § 300.226 of this title.

5. In § 665.813, revise paragraph (d) to read as follows: 

§ 665.813 

* * * * *

(d) A vessel registered for use under a Hawaii longline limited access permit may not have on board at any time during a trip for which notification to NMFS under § 665.803(a) indicated that deep-setting would be done, any float line less than 20 meters in length, longline gear with metal wire line within 1 meter of the hook, or any light stick. As used in this paragraph (d), “float line” means a line used to suspend the main longline beneath a float, and “light stick” means any type of light emitting device, including any fluorescent “glow bead,” chemical, or electrically powered light that is affixed underwater to the longline gear.

* * * * *

[FR Doc. 2022-00910 Filed 1-18-22; 8:45 am]

BILLING CODE 3510-22-P