(a) Take Reduction Plan gear restrictions. Gear restrictions resulting from the Pacific Offshore Cetacean Take Reduction Plan established under the authority of the Marine Mammal Protection Act of 1972 can be found at 50 CFR 229.31.
(b) Other gear restrictions.
(1) The maximum length of a drift gillnet on board a vessel shall not exceed 6,000 ft (1828 m).
(2) Up to 1,500 ft (457 m) of drift gillnet in separate panels of 600 ft (182.88 m) may be on board the vessel in a storage area.
(c) Protected Resource Area closures.
(1) Pacific leatherback conservation area. No person may fish with, set, or haul back drift gillnet gear in U.S. waters of the Pacific Ocean from August 15 through November 15 in the area bounded by straight lines connecting the following coordinates in the order listed:
(i) Pt. Sur at 36°18.5′ N. lat., to
(ii) 34°27′ N. lat. 123°35′ W. long., to
(iii) 34°27′ N. lat. 129° W. long., to
(iv) 45° N. lat. 129° W. long., thence to
(v) the point where 45° N. lat. intersects the Oregon coast.
(2) Pacific loggerhead conservation area. No person may fish with, set, or haul back drift gillnet gear in U.S. waters of the Pacific Ocean east of the 120° W. meridian from June 1 through August 31 during a forecasted, or occurring, El Nino event off the coast of southern California.
(i) Notification of an El Nino event. The Assistant Administrator will publish in the Federal Register a notification that an El Nino event is occurring, or is forecast to occur, off the coast of southern California and the requirement of a closure under this paragraph (c)(2). Furthermore, the Assistant Administrator will announce the requirement of such a closure by other methods as are necessary and appropriate to provide actual notice to the participants in the California/Oregon drift gillnet fishery.
(ii) Determination of El Nino conditions. The Assistant Administrator will rely on information developed by NOAA offices which monitor El Nino events, such as NOAA's Climate Prediction Center and the West Coast Office of NOAA's Coast Watch program, in order to determine whether an El Nino is forecasted or occurring for the coast of southern California. The Assistant Administrator will use the monthly sea surface temperature anomaly charts to determine whether there are warmer than normal sea surface temperatures present off of southern California during the months prior to the closure month for years in which an El Nino event has been declared by the NOAA Climate Prediction Center. Specifically, the Assistant Administrator, will use sea surface temperature data from the third and second months prior to the month of the closure for determining whether El Nino conditions are present off of southern California.
(iii) Reopening. If, during a closure as described within this paragraph (c)(2), sea surface temperatures return to normal or below normal, the Assistant Administrator may publish a Federal Register notice announcing that El Nino conditions are no longer present off the coast of southern California and may terminate the closure prior to August 31.
(d) Mainland area closures. The following areas off the Pacific coast are closed to driftnet gear:
(1) Within the U.S. EEZ from the United States-Mexico International Boundary to the California-Oregon border from February 1 through April 30.
(2) In the portion of the U.S. EEZ within 75 nautical miles from the mainland shore from the United States-Mexico International Boundary to the California-Oregon border from May 1 through August 14.
(3) In the portion of the U.S. EEZ within 25 nautical miles of the coastline from December 15 through January 31 of the following year from the United States-Mexico International Boundary to the California-Oregon border.
(4) In the portion of the U.S. EEZ from August 15 through September 30 within the area bounded by line extending from Dana Point to Church Rock on Santa Catalina Island, to Point La Jolla, CA.
(5) In the portion of the U.S. EEZ within 12 nautical miles from the mainland shore north of a line extending west of Point Arguello, CA, to the California-Oregon border.
(6) In the portion of the U.S. EEZ within the area bounded by a line from the lighthouse at Point Reyes to Noonday Rock, to Southeast Farallon Island to Pillar Point, CA.
(7) In the portion of the U.S. EEZ off the Oregon coast east of a line approximating 1000 fathoms as defined by the following coordinates:
42°00′00″ N. lat. 125°10′30″ W. long.
42°25′39″ N. lat. 124°59′09″ W. long.
42°30′42″ N. lat. 125°00′46″ W. long.
42°30′23″ N. lat. 125°04′14″ W. long.
43°02′56″ N. lat. 125°06′57″ W. long.
43°01′29″ N. lat. 125°10′55″ W. long.
43°50′11″ N. lat. 125°19′14″ W. long.
44°03′23″ N. lat. 125°12′22″ W. long.
45°00′06″ N. lat. 125°16′42″ W. long.
45°25′27″ N. lat. 125°16′29″ W. long.
45°45′37″ N. lat. 125°15′19″ W. long.
46°04′45″ N. lat. 125°24′41″ W. long.
46°16′00″ N. lat. 125°20′32″ W. long.
(8) In the portion of the U.S. EEZ north of 46°16′ N. latitude (Washington coast).
(e) Channel Islands area closures. The following areas off the Channel Islands are closed to driftnet gear:
(1) San Miguel Island closures.
(i) Within the portion of the U.S. EEZ north of San Miguel Island between a line extending 6 nautical miles west of Point Bennett, CA, and a line extending 6 nautical miles east of Cardwell Point, CA.
(ii) Within the portion of the U.S. EEZ south of San Miguel Island between a line extending 10 nautical miles west of Point Bennett, CA, and a line extending 10 nautical miles east of Cardwell Point, CA.
(2) Santa Rosa Island closure. Within the portion of the U.S. EEZ north of San Miguel Island between a line extending 6 nautical miles west from Sandy Point, CA, and a line extending 6 nautical miles east of Skunk Point, CA, from May 1 through July 31.
(3) San Nicolas Island closure. In the portion of the U.S. EEZ within a radius of 10 nautical miles of 33°16′41″ N. lat., 119°34′39″ W. long. (west end) from May 1 through July 31.
(4) San Clemente Island closure. In the portion of the U.S. EEZ within 6 nautical miles of the coastline on the easterly side of San Clemente Island within a line extending 6 nautical miles west from 33°02′16″ N. lat., 118°35′27″ W. long. and a line extending 6 nautical miles east from the light at Pyramid Head, CA.
(f) Pre-trip notification requirements.
(1) Drift gillnet vessel owners or operators are required to notify NMFS or the NMFS-designated observer provider at least 48 hours prior to departing on each fishing trip. The vessel owners or operators must communicate to the observer provider: the owner's or operator's name, contact information, vessel name, port of departure, estimated date and time of departure, and a telephone number at which the owner or operator may be contacted during the business day (Monday through Friday between 8 a.m. to 4:30 p.m., Pacific Time) to indicate whether an observer will be required on the subject fishing trip. Contact information for the current observer provider can be obtained by calling the NMFS West Coast Region Sustainable Fisheries Division at 562-980-4025.
(2) Drift gillnet vessel owners or operators must provide the NMFS Office of Law Enforcement for the West Coast Region (OLE) with a declaration report before the vessel leaves port to fish for thresher shark/swordfish with large-mesh drift gillnet gear in state and federal waters between 0 and 200 nautical miles offshore of California, Oregon, or Washington. Declaration reports will include: The vessel name and/or identification number, and gear type.
(i) Upon receipt of a declaration report, OLE will provide a confirmation code or receipt to confirm that a valid declaration report was received for the vessel. Retention of the confirmation code or receipt to verify that a valid declaration report was filed and the declaration requirement was met is the responsibility of the vessel owner or operator.
(ii) The vessel operator must send a new declaration report before leaving port on a trip during which the fishing gear that will be used is different from the gear type most recently declared for the vessel. A declaration report will be valid until another declaration report revising the existing gear declaration is received by OLE.
(iii) OLE's declaration hotline is 1-888-585-5518. The business hours for the OLE are Monday through Friday, except Federal holidays, 8 a.m. to 4:30 p.m., Pacific Time; voice messages left on the hotline will be retrieved at the start of the next business day.
(g) Vessel Monitoring System (VMS) requirements. Drift gillnet vessel owners are required to install an OLE type-approved VMS mobile transceiver unit (VMS unit) and to arrange for a OLE type-approved communications service provider to receive and relay transmissions to the OLE prior to fishing for thresher shark/swordfish with large-mesh drift gillnet gear.
(1) What is a VMS? A VMS consists of an OLE type-approved VMS unit that automatically determines the vessel's position and transmits it to an OLE type-approved communications service provider. The communications service provider receives the transmission and relays it to the OLE.
(2) What vessels are required to have a VMS? Any vessel registered for use with both a limited-entry California state large-mesh thresher shark/swordfish drift gillnet permit and a federal highly migratory species permit that fishes in state or federal waters off the coasts of California, Oregon, or Washington (0-200 nm offshore).
(3) How are VMS units and communications dervice providers approved by OLE?
(i) VMS unit manufacturers or communication service providers will submit products or services to the OLE for evaluation based on the published specifications.
(ii) The OLE will publish a list of OLE type-approved VMS units and communication service providers for the DGN fishery in the Federal Register or notify the public through other appropriate media; and the OLE may publish amendments to the list as necessary.
(4) What are the vessel owner's responsibilities? If you are a vessel owner that must participate in the VMS program, you or the vessel operator on your behalf must:
(i) Obtain an OLE type-approved VMS unit and have it installed on board your vessel in accordance with the instructions provided by the OLE. You may obtain a copy of the VMS installation and operation instructions from the Special-Agent-In-Charge (SAC).
(ii) Activate the VMS unit, submit an activation report and an initial declaration report, and receive confirmation from the OLE that the VMS transmissions are being received at least 72 hours prior to leaving port on a fishing trip for which VMS is required. Instructions for submitting an activation report may be obtained from the SAC. An activation report must again be submitted to the OLE following reinstallation of a VMS unit or change in service provider before the vessel may be used to fish in a fishery requiring the VMS.
(A) Activation reports. If you are a vessel owner who must use VMS and you are activating a VMS unit for the first time, or reactivating a VMS unit following a reinstallation or change in service provider, you or the vessel operator on your behalf must fax to the OLE an activation report that includes: vessel name, vessel owner's name, address and telephone number, vessel operator's name, address and telephone number, USCG vessel documentation number/state registration number; and, if applicable, the relevant state and federal permit numbers for which vessel or owner is registered, VMS unit manufacturer, VMS communications service provider, VMS unit identification, and a statement signed and dated by the vessel owner confirming compliance with the installation procedures provided by the SAC and identifying whether the VMS unit is primary or backup. Immediately following submission of an activation report, submit an initial declaration report as described in paragraph (f)(2) of this section using the OLE's declaration hotline included in paragraph (f)(2)(iii) of this section.
(B) Transferring ownership of the VMS unit. Ownership of the VMS unit may be transferred from one vessel owner to another vessel owner if all of the following documents are provided to the OLE: a new activation report, which identifies that the VMS unit was previously registered to another vessel, a notarized bill of sale showing proof of ownership of the VMS unit, and documentation from the communications service provider showing proof that the service agreement for the previous vessel was terminated and that a service agreement was established for the new vessel.
(iii) Continuously operate and maintain the VMS unit in good working order 24 hours a day throughout the fishing year. The VMS unit must accurately transmit a signal indicating the vessel's position at least once every hour, 24 hours a day throughout the year, unless a valid exemption report, as described in paragraph (g)(4)(iv)(F) of this section, has been confirmed by the OLE. A reduced signal transmission rate, at least once every 4 hours, may be authorized by the OLE when a vessel remains in port for an extended period of time.
(iv) Submit an exemption report to be confirmed by the OLE as valid, as described at paragraph (g)(4)(iv)(F) of this section, and comply with all conditions and requirements of the VMS exemption identified in this section and specified in the exemption report for a vessel to be exempted from the requirement of continuously operating and maintaining the VMS unit 24 hours a day throughout the fishing year.
(A) Haul out exemption. When it is anticipated that a vessel will be continuously out of the water for more than 7 consecutive days and the OLE has confirmed a valid exemption report has been received for the vessel, electrical power to the VMS unit may be removed and transmissions may be discontinued. Under this exemption, VMS transmissions can be discontinued from the time the vessel is removed from the water until the time that the vessel is placed back in the water.
(B) Outside areas exemption. When the vessel will be continuously operating seaward of the U.S. exclusive economic zone (EEZ; beyond 200 nm) off the coasts of California, Oregon, or Washington for more than 7 consecutive days and the OLE has confirmed a valid exemption report has been received for the vessel, the VMS unit transmissions may be reduced or discontinued from the time the vessel leaves the EEZ off the coasts of California, Oregon, or Washington until the time that the vessel re-enters the EEZ off the coasts of California, Oregon, or Washington. If the vessel is equipped with a VMS unit that OLE has approved for this exemption and after the OLE has received an exemption report for the vessel, the vessel owner or operator can request that the OLE reduce or discontinue the VMS transmissions.
(C) Long-term departure exemption. A vessel participating in the DGN fishery that is required to have VMS under paragraph (g) of this section may be exempted from VMS provisions after the end of the fishing season in which it fished, provided that a completed exemption report including a statement signed by the vessel owner indicating that the vessel will not be used to take and retain or possess or land swordfish taken in state or federal waters off the coasts of California, Oregon, or Washington during the upcoming fishing year is submitted to the OLE.
(D) Emergency exemption. Vessels required to have VMS under paragraph (g) of this section may be exempted from VMS provisions in emergency situations that are beyond the vessel owner's control, including but not limited to: fire, flooding, or extensive physical damage to critical areas of the vessel. A vessel owner may request an emergency exemption from the VMS requirements specified in paragraph (g) of this section for his/her vessel by contacting the OLE and submitting the following information in writing: the reasons for seeking an exemption including any supporting documents (e.g., repair invoices, photographs showing damage to the vessel, insurance claim forms, etc.), the time period for which the exemption is requested, and the location of the vessel while the exemption is in effect. The OLE will issue a written determination granting or denying the emergency exemption request. A vessel will not be covered by the emergency exemption until the OLE issues a determination granting the exemption. If an exemption is granted, the duration of the exemption will be specified in the OLE determination.
(E) Submission of exemption reports. Long-term departure exemption reports must be signed by the vessel owner and submitted by fax or by emailing an electronic copy of the actual report to the OLE. If an emergency exemption request will be submitted, initial contact with the OLE must be made by telephone, fax or email within 24 hours from when the emergency incident occurred. All emergency exemption requests must be submitted in writing within 72 hours from when the incident occurred. Submission methods for exemption reports, except long-term departures and emergency exemption requests, may include email, facsimile, or telephone. The OLE will provide, through appropriate media, instructions to the public on submitting exemption reports. Instructions and other information needed to make exemption reports may be mailed to the vessel owner's address of record. Owners of vessels required to use the VMS who do not receive instructions by mail are responsible for contacting OLE during business hours at least 3 days before the exemption is needed to obtain information necessary for exemption reports. The OLE must be contacted during business hours (Monday through Friday, except federal holidays, between 8 a.m. to 4:30 p.m., Pacific Time). Any other categories of exemptions that have not been specified in paragraph (g) of this section may be submitted to the OLE through the VMS unit or another method deemed appropriate by the OLE. Before a request for a new category of exemption can be approved by OLE, it must be announced in the Federal Register.
(F) Valid exemption reports. For an exemption report to be valid, the OLE must receive and confirm it at least 2 hours and not more than 24 hours before the exempted activities defined at paragraphs (g)(4)(iv)(A) through (D) of this section. An exemption report is valid until NMFS receives a report canceling the exemption. An exemption cancellation must be received at least 2 hours before the vessel re-enters the EEZ following an outside areas exemption; at least 2 hours before the vessel is placed back in the water following a haul-out exemption; or at least 2 hours before a vessel resumes fishing with a large-mesh drift gillnet after a long-term departure exemption. If a vessel is required to submit an activation report under paragraph (g)(4)(ii) of this section before returning to fish, that report may substitute for the exemption cancellation. After an emergency situation occurs that disrupts the VMS transmission, initial contact must be made with the OLE within 24 hours and a written emergency exemption request submitted within 72 hours from when the incident occurred. If the emergency situation, upon which an emergency exemption is based, is resolved before the exemption expires, an exemption cancellation must be received by OLE at least 2 hours before the vessel resumes fishing.
(v) When aware that transmission of automatic position reports has been interrupted, or when notified by OLE that automatic position reports are not being received, contact OLE and follow the instructions provided to you. Such instructions may include, but are not limited to, manually communicating the vessel's position to a location designated by the OLE or returning to port until the VMS unit is operable.
(vi) After a fishing trip during which interruption of automatic position reports has occurred, the vessel's owner or operator must replace or repair the VMS unit prior to the vessel's next fishing trip. Repair or reinstallation of a VMS unit or installation of a replacement unit, including any changes in communications service providers shall be in accordance with the instructions provided by the OLE.
(vii) Make the VMS units available for inspection by OLE personnel, USCG personnel, state enforcement personnel or any authorized officer.
(viii) Ensure that the VMS unit is not tampered with, disabled, destroyed, operated, or maintained improperly.
(ix) Pay all charges levied by the communication service provider as necessary to ensure continuous operation of the VMS units.
(5) What is the contact information for the OLE SAC? For issues related to day-to-day operation of VMS units, including declaration reports, activation reports and exemption reports, the SAC's designee is the OLE VMS Program Manager's office located at 7600 Sand Point Way NE., Seattle, WA 98115-6349; phone: (888) 585-5518; fax: (206) 526-6528); and email: [email protected].
(h) Limits on protected species mortalities and injuries.
(1) Maximum 2-year hard caps are established on the number of sea turtle and marine mammal mortalities and injuries that occur as a result of observed interactions with large-mesh drift gillnets (mesh size ≥ 14 inches) deployed by vessels registered for use under HMS permits. Mortalities and injuries during the current fishing season (May 1 through January 31) and the previous fishing season are counted towards the hard caps. The mortality and injury hard caps are as follows:
Table 1 to paragraph (h)
| Species | Rolling 2-year hard cap |
|---|---|
| Fin Whale | 2 |
| Humpback Whale | 2 |
| Sperm Whale | 2 |
| Leatherback Sea Turtle | 2 |
| Loggerhead Sea Turtle | 2 |
| Olive Ridley Sea Turtle | 2 |
| Green Sea Turtle | 2 |
| Short-fin Pilot Whale (CA/OR/WA stock) | 4 |
| Bottlenose Dolphin (CA/OR/WA stock) | 4 |
(2) Upon determination by the Regional Administrator that, based on data from NMFS observers or a NMFS Electronic Monitoring program, the fishery has reached any of the protected species hard caps during a given 2-year period:
(i) As soon as practicable, the Regional Administrator will file for publication at the Office of the Federal Register a notification that the fishery has reached a protected species hard cap. The notification will include an advisement that the large-mesh drift gillnet (mesh size ≥ 14 inches) fishery shall be closed, and that drift gillnet fishing in the U.S. West Coast Exclusive Economic Zone by vessels registered for use under HMS permits will be prohibited beginning at a specified date and ending at a specified date. Drift gillnet fishing will then be allowed beginning May 1 of the year when observed mortality and injury of each species during the previous two May 1 through January 31 fishing seasons is below its hard cap value. Coincidental with the filing of the notification, the Regional Administrator will also provide actual notice that the large-mesh drift gillnet (mesh size ≥ 14 inches) fishery shall be closed, and that drift gillnet fishing in the U.S. West Coast Exclusive Economic Zone by vessels registered for use under HMS permits will be prohibited beginning at a specified date, to all holders of HMS permits with a drift gillnet endorsement via VMS communication, postal mail, and a posting on the NMFS regional website.
(ii) Beginning on the fishery closure date published in the Federal Register and indicated by the Regional Administrator in the notification provided to vessel operators and permit holders under paragraph (h)(2)(i) of this section, and until the specified ending date, the large-mesh drift gillnet (mesh size ≥ 14 inches) fishery shall be closed. During the closure period commercial fishing vessels registered for use under HMS permits may not be used to target, retain on board, transship, or land fish captured with a large-mesh drift gillnet (mesh size ≥ 14 inches), with the exception that any fish already on board a fishing vessel on the effective date of the document may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided such fish are landed within 4 days after the effective date published in the fishing closure document.
[69 FR 18453, Apr. 7, 2004, as amended at 72 FR 31757, June 8, 2007; 78 FR 54551, Sept. 4, 2013; 80 FR 10395, Feb. 26, 2015; 85 FR 7250, Feb. 7, 2020]