Regulations to Authorize Deep-set Buoy Gear under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP)

NOAA Fisheries has published final regulations (88 FR 29545, May 8, 2023) to implement an amendment to the Fishery Management Plan (FMP) for U.S. West Coast Fisheries for Highly Migratory Species (HMS) that authorizes deep-set buoy gear (DSBG) as an additional gear type for catching swordfish and other HMS in federal waters off of California and Oregon. The amendment was previously made available for public review and comment (88 FR 1171, January 9, 2023). NOAA Fisheries published proposed regulations to implement the amendment (88 FR 7661, February 6, 2023) and solicited public comments, which were considered in developing the final rule.

The Pacific Fishery Management Council (Council) recommended that NOAA Fisheries authorize DSBG as an additional commercial gear type to improve the economic viability of the West Coast-based swordfish fishery while minimizing bycatch to the extent practicable. Currently, drift gillnet is the primary authorized gear type for targeting swordfish off the West Coast. Small amounts of swordfish are also landed using harpoon and hook-and-line gear. The majority of domestic swordfish landings to the West Coast come from the Hawaii-based longline fishery, which operates outside of federal waters off the West Coast. DSBG has been explored as an alternative way of fishing for swordfish in waters off the U.S. West Coast since 2011 through a series of research trials and exempted fishing permits (EFPs) issued on a case-by-case basis. The gear type catches fish in deep water using a long vertical line attached to surface buoys. Fishing in deep water helps reduce interactions between the gear and non-target species.

The regulations establish a limited entry regime for “phased-in” permitting of DSBG fishing within Federal waters of the Southern California Bight (SCB), and an open access regime in Federal waters outside of the SCB and south of the Oregon-Washington maritime border. The Council first recommended authorizing DSBG in September of 2019. Then, in March of 2021, the Council revised the tiered criteria by which applicants could qualify for limited entry permits. NOAA Fisheries has worked with the California Department of Fish and Wildlife to develop procedures to qualify applicants according to the tiered criteria. The regulations also specify restrictions on the configuration and operation of the gear, monitoring requirements, and procedures for obtaining permits. In December of 2022, the Council deemed the regulations consistent with their 2021 recommendation.

NOAA Fisheries published a final environmental impact statement (FEIS) in March of 2023 (88 FR 13443, March 3, 2023). The FEIS responds to issues raised in public comments and incorporates this feedback, as well as information from Endangered Species Act consultations with NOAA Fisheries West Coast Region Protected Resources Division, into an updated document. The analysis in the Final EIS, overall, suggests that DSBG authorization is likely to have minor impacts on species in the action area, though rare interactions with marine mammals and sea turtles may occur.

When the final rule is effective, interested stakeholders can request a DSBG endorsement on their federal HMS permit to fish in Federal waters south of the Oregon-Washington border and outside of the SCB. The HMS permit and the DSBG endorsement allow participation in the open access portion of the fishery. The effectiveness of the final rule also triggers a 60-day application period, in which interested stakeholders can apply to be considered for Tiers 1-8 of the qualifying criteria for limited entry permits. These limited entry permits are required to fish DSBG in Federal waters within the SCB. Those who either do not apply during the 60-day application period for Tiers 1 through 8 or are not qualified for those tiers may apply to be considered for an LE permit on a first-come, first-served basis. These LE permits would be issued after those issued to applicants who qualify in Tiers 1 through 8. Lastly, any existing EFPs being used to fish DSBG will become invalid when the final rule is effective. To avoid a potential gap in DSBG fishing in the SCB, NOAA Fisheries is planning to re-issue existing DSBG EFPs as exempted from the new regulations. These re-issued EFPs will be revoked upon issuance of the first batch of limited entry permits.