[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51805-51814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26330]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 970129015-7220-05; I.D. 010397A]
RIN 0648-AI84
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to require new training, equipment,
and gear modifications for operators and vessels in the California/
Oregon drift gillnet fishery for thresher shark and swordfish to reduce
the level of mortality and serious injury of several marine mammal
stocks that occur incidental to fishing operations.
DATES: Effective October 30, 1997.
ADDRESSES: Copies of the final Pacific Offshore Cetacean Take Reduction
Plan and final Environmental Assessment (EA) prepared for the final
rule may be obtained by writing to Irma Lagomarsino, Southwest Region,
NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; or
Victoria Cornish, Office of Protected Resources, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910-3226.
FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, 562-980-4016;
or Victoria Cornish, NMFS, 301-713-2322.
SUPPLEMENTARY INFORMATION: The California/Oregon drift gillnet (CA/OR
DGN) fishery which targets thresher shark and swordfish, is classified
as a Category I fishery under section 118 of the Marine Mammal
Protection Act (MMPA; 16 U.S.C. 1361 et seq.). A Category I fishery is
a fishery that has frequent incidental mortality and serious injury of
marine mammals. The majority of the fishing effort in the CA/OR DGN
fishery occurs within 200 miles (320 km) offshore of California and
Oregon. Under California state law, from May 1 through August 14, drift
gillnets may not be used to take swordfish or thresher shark in ocean
waters within 75 nautical miles of the California mainland coastline
(California Fish and Game Code, Sec. 8576). Swordfish may be taken
within 75 nautical miles of the California mainland from August 15 to
January 31; additional area restrictions also apply within this area.
From February through April, drift gillnets may not be used.
The CA/OR DGN fishery has a historical incidental bycatch of
several strategic marine mammal stocks including: Several beaked whale
species, short-finned pilot whales, pygmy sperm whales, sperm whales,
and humpback whales (Barlow et al., 1995). A strategic stock is a
stock: (1) For which the level of direct human-caused mortality exceeds
the potential biological removal (PBR) level; (2) that is declining and
is likely to be listed under the Endangered Species Act (ESA) in the
foreseeable future; or (3) that is listed as a threatened or endangered
species under the ESA.
Section 118 of the MMPA requires NMFS to develop and implement a
take reduction plan to assist in the recovery or to prevent the
depletion of each strategic stock that interacts with a Category I or
II fishery. The immediate goal of a take reduction plan is to reduce,
within 6 months of its implementation, the level of mortality and
serious injury of strategic stocks incidentally taken in the course of
commercial fishing operations to less than the PBR levels established
for such stocks. Since the CA/OR DGN fishery is a Category I fishery
that interacts with several strategic stocks, NMFS established the
Pacific Offshore Cetacean Take Reduction Team (PCTRT) on February 12,
1996 (61 FR 5385), to prepare a draft take reduction plan. The PCTRT
includes representatives of NMFS, the California Department of Fish and
Game (CDFG), the Pacific States Marine Fisheries Commission,
environmental organizations, academic and scientific organizations, and
participants in the CA/OR DGN fishery. In selecting these team members,
NMFS sought an equitable balance among representatives of resource user
and non-user interests.
The PCTRT was tasked with developing a consensus plan for reducing
the level of mortality and serious injury of strategic marine mammal
stocks incidental to the CA/OR DGN fishery. The PCTRT met five times
between February and June 1996 and submitted a consensus draft plan to
NMFS on August 15, 1996 (draft PCTRP, 1996). The draft PCTRP included:
(1) A review of the current information on the status of the affected
strategic marine mammal stocks; (2) a description of the CA/OR DGN
fishery; (3) an analysis of data from NMFS' CA/OR DGN fishery observer
program from 1990-1995; (4) primary strategies to reduce takes of
strategic marine mammal stocks; (5) contingency measures that would
reduce fishing effort; and (6) other recommendations regarding
voluntary measures to reduce takes, measures to enhance the
effectiveness of the observer program, research on oceanographic/
environmental variables, and other potential strategies considered and
rejected by the team. The PCTRT recommended that three of the four
primary strategies of the draft PCTRP (1996) be administered on a
mandatory basis (strategies #1, #2, and #4) and that one be
administered on a voluntary basis (strategy #3). NMFS reconvened the
PCTRT in May 1997 and it provided NMFS with additional comments and
recommendations on the proposed PCTRP and proposed rule to implement
the plan (see PCTRT Recommendations from the 1997 Meeting section).
Because the implementation of the PCTRP would result in the
regulation of the state-managed CA/OR DGN fishery, NMFS contacted both
CDFG and the Oregon Department of Fish and Wildlife (ODFW) on how best
to proceed with the Plan's implementation. CDFG and ODFW both deferred
to the Federal government to issue regulations under the authority of
the MMPA to implement the PCTRP. On February 14, 1997, NMFS proposed
regulations under the MMPA (62 FR 6931) to implement three of the
primary strategies recommended by the PCTRT (draft PCTRP, 1996). These
strategies include the establishment of a minimum depth-of-fishing
requirement (strategy #1), use of acoustic deterrent devices (pingers)
(strategy #2), and mandatory skipper workshops (strategy #4). NMFS also
proposed to implement primary strategy #3 on a voluntary basis, under
which NMFS would encourage CDFG not to reissue lapsed permits,
encourage ODFW to continue issuing not more than 10 permits per year
and explore the development of a permit buyback program for both CDFG
and ODFW permit holders. In the proposed rule, NMFS described how it
intended to implement the other sections of the draft PCTRP.
In addition to publication in the Federal Register, NMFS issued a
press release announcing the availability of the proposed rule and
summarizing the
[[Page 51806]]
major issues contained in the proposed rule. Information in the press
release was published in several California newspapers and broadcast on
at least one radio station. Voluntary Skipper Education Workshops were
held in several locations throughout California in June 1997, providing
an additional opportunity to inform participants in the fishery about
the proposed rule and PCTRP.
The final rule will govern fishing by all U.S. drift gillnet
vessels operating in waters seaward of the coast of California or
Oregon, including adjacent high seas waters. This final rule applies to
U.S. drift gillnet vessels originating from ports outside California or
Oregon (e.g., Alaska). NMFS has determined that implementation of this
final rule is expected to reduce, within 6 months of its
implementation, mortalities and serious injuries of all strategic
stocks that are taken by the CA/OR drift gillnet fishery to below the
PBR level for each stock.
Responses to Comments
NMFS received six written comments during the comment period for
the proposed rule. Comments were received from fishers, environmental
groups, the Pacific States Marine Fisheries Commission, and members of
the general public. Key issues and concerns are summarized and
responded to as follows:
Comments on the Depth of Fishing Requirement (Strategy #1)
In the proposed rule, NMFS proposed to establish a minimum depth-
of-fishing requirement that would prohibit the use of extenders that
are less than 36 ft (10.9 m). Extender lines (buoy lines) attach buoys
(floats) to a drift gillnet's floatline and determine the depth in the
water column at which the net is fished. Two commenters agreed with the
establishment of a minimum 36 ft (10.9 m) depth-of-fishing requirement
as a method to reduce incidental marine mammal mortality and serious
injury. Two commenters felt that there must be a mechanism to enforce
the extender provision. One commenter believed that since fishing at
depths that are greater than 36 ft (10.9 m) results in a lower catch of
target fish, vessel operators will fish shallower in the water when
observers are not on the vessel. Consequently, future observer data may
not be representative of the actual marine mammal take in the entire
fishery.
Response: On those boats that are carrying marine mammal observers
(e.g., expected to be approximately 20 percent of the fishing effort),
information will collected by observers on whether there is compliance
with the minimum depth-of-fishing requirement. However, NMFS agrees
that this may not be sufficient to ensure compliance. Therefore, NMFS
enforcement agents will conduct random checks and NMFS will work with
state agents to monitor compliance. In addition, since the cost of a
drift gillnet is approximately $10,000 and interactions with marine
mammals often results in net damage or net loss, vessel operators will
be motivated to make changes in their fishing gear or techniques to
avoid marine mammal entanglement, and subsequently, net damage or loss.
Furthermore, analysis of the best available data indicates that
swordfish and thresher shark are equally likely to be caught at depths
that are greater than 36 ft (10.9 m), even though drift gillnet fishers
sometimes fish at shallower depths (NMFS unpublished data). Combined
with other strategies, NMFS believes the minimum depth-of-fishing
requirement will significantly contribute to reductions in cetacean
bycatch, including strategic stocks in the CA/OR DGN fishery.
Comments on the Pinger Experiment and Requirement (Strategy #2)
Comment 1: One commenter agreed with NMFS that the preliminary
results from the 1996/1997 CA/OR DGN fishery pinger experiment supports
the use of pingers.
Response: NMFS agrees.
Comment 2: One commenter was concerned about the biological impact
of pingers on cetaceans and recommended that they should not be used
until scientific evidence shows that pingers are not harmful to any
strategic stock.
Response: NMFS prepared an Environmental Assessment (EA) on the use
of acoustic pingers to reduce marine mammal bycatch in commercial
fisheries (NMFS, 1997a). NMFS concluded that the sound intensity levels
of pingers will not cause physical injury or temporary threshold shifts
in marine mammals. Furthermore, due to the limited sound range of
pingers and the limited level of fishing effort in the CA/OR DGN
fishery, ensonifying major portions of the ocean will not occur. Thus,
the negative impact of pingers used by the CA/OR DGN fishery on marine
mammals is likely to be negligible. Nevertheless, monitoring programs
will evaluate changes in distribution to evaluate whether cetaceans are
avoiding important habitat. NMFS will continue to evaluate the status
of strategic marine mammal stocks that interact with the CA/OR DGN
fishery on an annual basis. NMFS made similar determinations regarding
the impact of pingers on marine mammals in the EA prepared for this
final rule (NMFS, 1997b).
Comment 3: One commenter believed that pinger noise during the
experiment may constitute ``harassment'' under the MMPA and ESA.
Response: Although scientific results clearly indicate that pingers
significantly reduced harbor porpoise bycatch in the New England sink
gillnet fishery (Reeves et al., 1996) and cetacean bycatch in the CA/OR
DGN fishery (see section on 1997 PCTRT Recommendations), scientists do
not know why they worked (NMFS, 1997a). Several mechanisms are
possible. For example, pingers may operate as acoustic alarms alerting
animals to the presence of fishing gear on the assumption they will
avoid the gear if made aware of its presence. Alternatively, the sounds
emitted by pingers may repel marine mammals away from the gear. Another
possibility is that the pingers disperse the prey upon which marine
mammals forage and thus, affect marine mammal behavior indirectly.
The state of knowledge about marine mammal hearing abilities and
behavior in response to various types of sound is limited (Reeves et
al., 1996). However, pingers were not originally designed to harass
marine mammals. Pingers produce relatively weak sound pulses of 132 dB
re 1 Pa at 1 m which attenuate to ambient noise levels at a distance of
only 300 m (984.3 ft) from the source (NMFS, 1997a). In contrast,
``acoustic harassment devices'' were specifically designed to emit much
louder acoustical pulses (e.g., 187-218 dB re 1 Pa at 1 m) strong
enough to keep pinnipeds away from nets and aquaculture facilities
(Richardson et al., 1995; NMFS, 1997a).
It is questionable if the operation of pingers would constitute an
``act of pursuit, torment or annoyance'' under the definition of
``harassment'' in section 3 of the MMPA. Furthermore, pingers have no
potential to injure a marine mammal. Regardless, even if the operation
of pingers does constitute ``harassment'' under the MMPA, section
101(a)(4) of the MMPA allows the use of certain measures by the owners
of fishing gear to deter marine mammals so long as such measures do not
result in the death or serious injury of a marine mammal. NMFS
recommends the use of pingers in the CA/OR DGN fishery as a specific
measure that may be used to nonlethally deter marine mammals. Likewise,
such takes are allowed under section 118 of the MMPA.
[[Page 51807]]
With respect to the ESA, there is no statutory definition for
``harassment'' and NMFS has not issued a regulatory definition for this
term. In interpreting this term, NMFS examined a variety of factors,
including the extent to which the activity disrupts normal behavioral
patterns and whether it is likely to produce harm or injury. NMFS has
concluded that there is no evidence available at this time that would
suggest the use of pingers to deter marine mammals from interacting
with fishing gear would constitute harassment under the ESA.
NMFS will continue to investigate the possible mechanisms of why
pingers reduce cetacean entanglement in the CA/OR DGN fishery. If NMFS
determines that the effect of sound emitted from pingers does
constitute ``harassment'', it will take appropriate action, which may
include action to modify the requirements for pinger use, to alter the
specifications for pingers or to ensure any necessary authorizations
are in place.
Comment 4: Two commenters cautioned that pingers may not be
effective at reducing cetacean bycatch in the CA/OR DGN fishery due to
the variety of cetaceans that are entangled.
Response: NMFS and the fishery conducted an experiment during the
1996/1997 fishing season in the CA/OR DGN fishery to test the efficacy
of pingers at reducing cetacean entanglement. Results from this study
indicate that the use of pingers is effective at significantly reducing
cetacean bycatch in the fishery (see 1997 PCTRT Recommendations
section). NMFS will continue to evaluate the long-term effectiveness of
pingers at reducing strategic stock bycatch in the CA/OR DGN fishery.
Comment 5: One commenter stated that the proposed rule failed to
explain clearly how NMFS would certify that pingers were NMFS approved
or enforce the pinger specifications (e.g., intensity, frequency,
etc.).
Response: NMFS agrees that the issue of pinger certification needs
to be clarified. In the proposed rule, NMFS stipulated that only
``NMFS-approved pingers'' could be used in the fishery and that if
requested, NMFS may authorize the use of non-NMFS-approved pingers for
limited experimental purposes. This final rule stipulates
specifications for pingers that are required to be used in the CA/OR
DGN fishery under section 229.31(c)(1). Since all pingers used in the
fishery must meet these specifications, all references to NMFS-approved
pingers have been removed from the final rule. NMFS is not requiring
manufacturers to have their pingers certified by an independent company
that their pingers meet the pinger specifications of the final rule;
independent companies are not necessarily more credible at testing the
sound characteristics of pingers than the manufacturer. However,
manufacturers of pingers will need to provide documentation that their
pingers meet the specifications of the final rule. NMFS will monitor,
periodically, whether the pingers used by the fishery meet the
specifications under section 229.31(c)(1) to ensure compliance with
this requirement. In the future, if experimental findings support the
use of a pinger with different specifications, NMFS would establish new
specifications by rulemaking, and also provide actual notice to drift
gillnet vessel operators.
Comment 6: One commenter suggested that in the final rule NMFS
publish: (1) The parameters of the drift gillnet pinger experiment; (2)
the basis for the pinger spacing requirements and; (3) a requirement
that all vessels carry four spare pingers. Furthermore, they
recommended that NMFS conduct additional research to determine whether
the spacing requirements for pingers are adequate.
Response: The experimental design for the 1996/1997 pinger
experiment in the CA/OR DGN fishery was based primarily on the
recommendations from the participants of an acoustic workshop (Reeves
et al., 1996). Based on these suggestions, the PCTRT drafted the pinger
experimental protocol, circulated it for peer review, and made the
appropriate changes to ensure that a scientifically credible experiment
would be conducted. The details of the experimental protocol can be
found in the draft PCTRP (1996) and is not repeated here.
The participants in the acoustic workshop (Reeves et al., 1996),
and the PCTRT, recommended that pingers be placed every 300 ft (91.44
m) on the leadline and floatline for experimental purposes in the CA/OR
DGN fishery. This interval was suggested because it had been effective
at reducing harbor porpoise bycatch in the New Hampshire sink gillnet
fishery. In addition, drift gillnets are often set with the floatline
above the ocean thermocline and with the leadline below it, especially
sets targeting swordfish. Since thermoclines act as barriers to sound
transmission, they also recommended that the pingers placed on both
lines be staggered such that the horizontal distance between a pinger
on the floatline and a pinger on the leadline is 150 ft (45.72 m). For
a typical 6000 ft (1828.80 m) net, 21 pingers on the floatline and 20
pingers on the leadline would be needed (41 total pingers). The final
rule requires this pinger configuration on the net. NMFS will continue
to evaluate the long-term efficacy of pingers at reducing cetacean
bycatch in the fishery and whether the spacing intervals require
modification.
NMFS does not agree that CA/OR DGN fishery vessel owners should be
required to maintain four pingers as spares, because the requirement
that all pingers remain functioning and operational at all times during
deployment provides adequate direction to vessel owners.
Comment 7: One commenter questioned the significance of the
preliminary results from the 1996/1997 pinger experiment in the CA/OR
DGN fishery because they believed the experiment was conducted only in
August and may not be representative of the entire fishing season.
Response: NMFS would like to clarify that the 1996/1997 pinger
experiment was conducted from September 1996-January 1997. Thus, the
results from the experiment are based on the months in which the
majority of fishing effort occurs.
Comment 8: One commenter was concerned with the possibility that
marine mammals may become habituated to the sound of pingers.
Response: At this time, it is not possible to determine whether
cetaceans will become habituated to the sounds emitted by pingers.
However, since the CA/OR DGN fishery operates offshore, over a broad
geographic area, and the sound range of pingers is limited, habituation
would be less likely in this fishery compared to nearshore fisheries
(NMFS 1997a). To the extent that pingers are thought to operate as an
alarm mechanism, increased exposure to pingers may increase their
effectiveness in reducing interactions depending on the learning
behavior of cetaceans. NMFS will continue to monitor the status of
cetaceans that interact with this fishery.
Comments on the Voluntary Program To Reduce the Number of Gillnet
Permits (Strategy #3)
Comment 1: Several commenters agreed that the CDFG should be
encouraged to deny reissuance of lapsed permits and that ODFW should be
encouraged not to issue more than the current level of unlimited
landings permits (strategy #3, part I). One commenter believed that
this strategy was not likely to result in decreases in marine mammal
mortality. One commenter supported the draft PCTRP's voluntary permit
``buy-back program'' to
[[Page 51808]]
reduce the number of drift gillnet permits (strategy #3, part II) as a
method of reducing marine mammal mortality.
Response: The PCTRT recognized that the California drift gillnet
fishery is not restricted from an expansion in fishing effort because a
portion of CDFG drift gillnet permittees make only the minimum landings
to keep valid permits. If these permit holders began fishing well
beyond these minimum requirements, marine mammal entanglements likely
would increase. To limit this potential expansion of fishing effort,
the PCTRT recommended two approaches that would reduce the number of
drift gillnet permits under strategy #3. First, information provided to
the PCTRT indicated that currently CDFG does not reissue lapsed drift
gillnet permits. For these reasons, the PCTRT recommended that CDFG be
encouraged to continue not to reissue drift gillnet permits that have
lapsed and that ODFW be encouraged to continue to issue not more than
10 unlimited landing permits. Second, the PCTRT recommended that the
development of a permit buy-back program be explored. A buy-back
program would focus on those fishers that hold drift gillnet permits
from the State of California and who only fulfill the minimum
requirements to maintain their permits.
Implementation of the recommendations to CDFG would affect only
those permit holders who allow their CDFG drift gillnet permits to
lapse. Implementation of the buyback program would only affect drift
gillnet permit holders who were interested in being financially
compensated for allowing their permits to lapse. Strategy #3 would not
affect those drift gillnet fishers that annually maintain valid CDFG
drift gillnet permits or who did not want to voluntarily participate in
the buy-back program. This strategy is not a measure to put a ``cap on
total fishing effort'' in the CA/OR DGN fishery (i.e., establish a
maximum threshold on the number of sets each year). Implementation of
strategy #3 is not likely to significantly decrease the current level
of incidental marine mammal mortality by the fishery in the short-term,
but is designed to limit the potential expansion of fishing effort and
associated marine mammal mortality in the long-term.
As recommended by the Team, NMFS contacted both CDFG and ODFW
regarding implementation of Strategy #3 of the Plan. Specifically, NMFS
encouraged CDFG to continue its current practice of not reissuing
lapsed drift gillnet permits and inquired whether CDFG was interested
in participating in a permit buy-back program. CDFG agreed to continue
implementing its current practice of not reissuing lapsed drift gillnet
permits.
At this time, CDFG is unable to participate in any permit buy-back
program. Although NMFS does not have funding to implement a permit buy-
back program, section 118(j) of the MMPA allows NMFS to accept,
solicit, receive, hold, administer and use gifts, devises and bequests
to carry out the provisions of section 118, which includes the
implementation of take reduction plans. NMFS will continue to explore
the development of a buy-back program.
NMFS also contacted ODFW and encouraged the agency to continue to
issue no more than 10 unlimited-landings drift gillnet landings
permits. ODFW stated that it did not plan on asking the Oregon Fish and
Wildlife Commission to increase the maximum number of landings permits.
ODFW also stated that all vessels holding Oregon gillnet permits in
1997 are vessels that currently participate in the California DGN
fishery.
Comment 2: One commenter agreed with the implementation of the buy-
back program, although they recommended it should be coupled with other
economic incentive programs (e.g., raising state landing taxes).
Response: The PCTRT considered increasing fees in the fishery.
However, the PCTRT rejected this method as a primary strategy at this
time, because it would require a change in California law, would be a
financial hardship to some fishers, and may not necessarily reduce
current fishing effort.
Comments on the Skipper Education Workshops (Strategy #4)
Comment: Several commenters agreed that mandatory education during
Skipper Education Workshops would help facilitate the implementation of
the PCTRP. One commenter suggested that NMFS issue documentation to
vessel operators that attend workshops to verify their participation
and require that this documentation be onboard their vessel when they
are participating in the CA/OR DGN fishery.
Response: Documentation of workshop attendance does not need to be
kept on vessels because NMFS will maintain a database of all skippers
who participate in the workshops to verify workshop attendance by
individual vessel operators. This database will be used for enforcement
of the Skipper Education Workshop provision.
Comments on Contingency Measures Involving a Reduction in Fishing
Effort
Comment: One commenter was concerned that the language used in the
proposed rule describing the PCTRT's recommendations regarding
``contingency measures involving a reduction in fishing effort'' was
not consistent with the draft PCTRP submitted by the team.
Response: NMFS agrees that inappropriate language regarding
``contingency measures'' was used in the proposed rule. The draft PCTRP
included an evaluation of several measures to reduce fishing effort in
the CA/OR DGN fishery as a potential method of reducing the incidental
taking of strategic marine mammal stocks (section IV; draft PCTRP,
1996). Although none of the primary strategies included measures to
reduce fishing effort, the team agreed to the following:
If at the time the Take Reduction Team reconvenes, the TRP
objectives have not been met, the TRT will evaluate and recommend
methods to reduce fishing effort in the upcoming fishing season,
unless there are other applicable measures which could reasonably be
expected to reduce take levels to below PBR in the upcoming fishing
season.
The PCTRT also recommended that NMFS reconvene the team every year
prior to June 15 to monitor the implementation of the final PCTRP,
until such time that NMFS determines that the objectives of the MMPA
have been met.
NMFS reconvened the PCTRT May 29-30, 1997 (PCTRT, 1997), and
intends to continue to reconvene the PCTRT on an annual basis (prior to
June 15) until the long-term take reduction goals of the MMPA have been
reached by the CA/OR DGN fishery. NMFS did not intend to propose any
changes to the PCTRT's original recommendations regarding contingency
measures in the proposed rule. NMFS concurs with the PCTRT's original
recommendation that the objectives of these meetings are to review the
best available information on the status of strategic stocks, the
latest PBR and take estimates for marine mammals incidentally taken in
the fishery, and the efficacy of measures implemented to reduce the
incidental taking of these stocks. Furthermore, NMFS agrees that if at
the time the team reconvenes, after the final plan has been adopted by
NMFS, the goals of the MMPA have not been met, the TRT will evaluate
and recommend methods to reduce fishing effort in the upcoming fishing
season, unless there are other applicable measures which could
reasonably be expected to reduce take levels to below PBR in the
upcoming fishing season.
[[Page 51809]]
General Comments on the Proposed Rule
Comment 1: One commenter suggested that a reduction of marine
mammal mortality of 50 percent could be achieved if the length of the
net was reduced by 50 percent.
Response: NMFS agrees that reducing the size of the net could
potentially decrease the number of marine mammals captured per set.
However, it would also decrease the number of target species captured
per set. Since this would encourage inefficient fishing, some fishers
may compensate for the reduced catch rate by increasing the number of
sets over the season. Thus, overall incidental marine mammal take may
not change. Furthermore, although the TRT discussed several measures
that would decrease fishing effort, including reducing net size, it did
not recommend their implementation at this time.
Comment 2: One commenter recommended that a program be created to
rescue whales caught in drift gillnets.
Response: Although similar programs have been developed on the east
coast to disentangle large whales caught in fishing gear, only a small
portion of the cetaceans caught in the CA/OR DGN fishery are alive when
the net is pulled from the water. In addition, the fishery operates
primarily offshore in locations where rescues would be infeasible.
Comment 3: One commenter cautioned that the implementation of the
PCTRP is not likely to achieve the Zero Mortality Rate Goal (ZMRG) in 5
years.
Response: Section 118(f)(2) of the MMPA establishes ZMRG as a long-
term goal of take reduction plans, taking into account the economics of
the fishery, the availability of existing technology, and existing
State or regional fishery management plans. NMFS has concluded that the
primary strategies recommended by the PCTRT represent substantial
progress toward achieving the ZMRG. Nonetheless, NMFS also recognizes
that these strategies, by themselves, may not be sufficient to
guarantee this goal will be achieved. For this reason, NMFS will
reconvene the team at least once a year to monitor the implementation
of the final TRP, and, if necessary, recommend measures for the fishery
to achieve its ZMRG within the time period specified in the MMPA.
Comment 4: One commenter suggested that the proposed rule
contradicted the draft PCTRP recommendation to encourage vessel owners
to convert their nets to a mesh size of 20 inches during the Skipper
Education Workshops, but not to convert their mesh to a twine size of
#27.
Response: The PCTRT evaluated the relationship between mesh size
and cetacean bycatch. Their analysis found that mesh size was not
significantly related to entanglement of cetaceans although there was a
trend towards greater mesh sizes entangling more cetaceans. The
biological reasons for this trend are unknown. Nevertheless, the PCTRT
recommended that all vessels in the CA/OR DGN fishery voluntarily
convert to 20-inch (50.8 cm) net mesh size when replacing old nets or
large panels of existing net and that information be collected to
further evaluate the efficacy of using 20-inch (50.8 cm) mesh as a
method for reducing cetacean bycatch (draft PCTRP, 1996). NMFS will
encourage vessel operators to voluntarily convert to 20-inch mesh (50.8
cm) during its Skipper Education Workshops. If in the future more of
the fleet uses this mesh size, the relationship between mesh size and
cetacean bycatch may be better understood.
No significant correlations were found between specific twine sizes
and higher cetacean entanglement (draft PCTRP, 1996). The PCTRT did not
recommend that NMFS encourage vessel owners to convert their nets to a
different twine size. However, NMFS will continue to evaluate the
relationship of twine size and cetacean bycatch in order to evaluate
twine size as a potential strategy to reduce cetacean bycatch.
Comment 5: One commenter recommended that NMFS undertake the
necessary research to determine whether adjusting the percentage of
slack in the net may reduce cetacean bycatch.
Response: The PCTRT evaluated the relationship between the
percentage of slack in the net and cetacean bycatch. Because the PCTRT
found only a borderline significance for the slack percentages of 30-40
and 45-60, the PCTRT did not recommend requiring specific net slacks as
a primary strategy in the draft PCTRP. NMFS agrees with this
recommendation and therefore, has not included it as a requirement in
the final rule. However, NMFS will refine the collection of data on net
slack in order to evaluate the utility of percent of net slack as a
strategy to reduce cetacean bycatch.
Comment 6: One commenter stated that if the incidental take of
marine mammals is reduced to zero, there would be no need to reduce
fleet expansion.
Response: Theoretically, if marine mammal mortality and serious
injury incidental to operations of the CA/OR DGN fishery is reduced to
zero, there would be no need to limit the expansion of effort in the
fishery unless that expansion precluded the fishery from achieving its
take reduction goals under the MMPA. Nevertheless, the likelihood that
marine mammal bycatch will be reduced to absolute zero is low. Thus,
since fishing effort and marine mammal bycatch are significantly
correlated, substantial increases in fishing effort would likely
require additional take reduction strategies in order for the fishery
to meet its take reduction goals under the MMPA.
Comment 7: One commenter recommended increasing the closed season
and/or banning the use of drift gillnets in California.
Response: The PCTRT explored several measures to reduce fishing
effort in the fishery, and associated marine mammal entanglement.
However, at this time, the PCTRT and NMFS expect that the short-term
goals of the MMPA can be met without reducing fishing effort,
increasing the closed season, or banning the use of drift gillnets off
California.
Comment 8: One commenter noted that there is a discrepancy between
numbers used to refer to each primary strategy (e.g., strategy #1, #2,
etc.) in the proposed rule and the draft PCTRP (1996).
Response: NMFS agrees and has changed the final rule's references
to the plan strategies to be consistent with each strategy of the plan.
Comment 9: One commenter concluded that the draft PCTRP was
inadequate to reduce marine mammal mortality in the CA/OR DGN fishery
and urged NMFS to modify the plan to meet the requirements of the MMPA.
Response: NMFS disagrees. The PCTRT and NMFS expects the
implementation of the PCTRP will achieve the short-term goals of the
MMPA. NMFS will continue to review and evaluate the effectiveness of
measures implemented under the plan to reduce cetacean entanglement.
Furthermore, the Pacific Scientific Review Group recommended that ``* *
* extreme management measures that may severely restrict or impact
California driftnet fishing activities be postponed until analyses of
data from pinger experiments and from current ship surveys for cetacean
abundance are completed * * *'' (PSRG, 1997). Moreover, in addition to
the four primary strategies recommended by the PCTRT, they also
identified an additional 13 strategies that might reduce bycatch of
strategic marine mammal stocks (draft PCTRP, 1996). These strategies
were either rejected by the PCTRT or held in reserve for future
[[Page 51810]]
consideration. If the goals of section 118(f) of the MMPA have not been
met once the final PCTRP has been implemented, these strategies may be
reconsidered by the PCTRT and NMFS. NMFS will reconvene the team
annually to monitor the implementation of the final plan and provide
NMFS with recommendations as to whether additional measures are
necessary to achieve the short-term and long-term goals of the MMPA.
1997 PCTRT Recommendations
On May 29-30, 1997, NMFS reconvened the PCTRT to review the final
results from the 1996/1997 CA/OR DGN pinger experiment and evaluate the
need for effort reduction and potential implementation mechanisms as
recommended by the Team in the draft PCTRP (draft PCTRP, 1996). The
Team also reviewed at the meeting the status of the implementation of
the final Plan and final Rule to implement the Plan, Skipper Education
Workshops, and the drift gillnet observer program. On July 18, 1997,
the Team submitted to NMFS the following recommendations regarding the
proposed plan and rule (PCTRT, 1997).
Depth of Fishing Requirement (Strategy #1)
In August 1996, the PCTRT recommended that NMFS establish a
fleetwide 6-fathom minimum extender line (buoy line) requirement. At
the May 1997 PCTRT meeting, the team concurred with NMFS's proposed
rule requiring the use of extenders that are equal to or greater than 6
fathoms for all vessels in the CA/OR DGN fishery. This final rule
prohibits the use of extenders that are less than 6 fathoms (36 ft;
10.9 m).
Pinger Experiment and Requirement (Strategy #2)
In August 1996, the PCTRT recommended that NMFS and the CA/OR DGN
fishery initiate a pinger experiment during the 1996-1997 fishing
season to evaluate the effectiveness of pingers at reducing incidental
cetacean and strategic stock bycatch (Strategy #2; draft PCTRP, 1996).
Moreover, the PCTRT recommended that if results from this experiment
indicate that there is a downward trend in overall cetacean bycatch,
NMFS should establish a mandatory fleetwide pinger requirement for all
CA/OR DGN fishery vessels prior to the next fishing season (1997-1998)
and continue to monitor the effectiveness of pingers at reducing
bycatch.
Between September 1996 and January 1997, NMFS and the fishery
implemented a single-blind experiment through NMFS' Drift Gillnet
Observer Program as recommended by the PCTRT (draft PCTRP, 1996). This
experiment used pingers with the same sound characteristics as the
pingers used in the New England sink gillnet fishery experiment (e.g.,
broadband signal centered on 10 kHz with a source level of 132 dB re 1
Pa at 1 m) (PCTRP, 1996; NMFS, 1997a). Because preliminary results from
this experiment indicated that the observed cetacean entanglement rate
was almost four times greater for non-pinger sets than for those sets
that used pingers, NMFS proposed that pingers be mandatory in its
proposed rule to implement the PCTRP. However, NMFS stipulated that if
final results from the experiment indicated that pingers were
ineffective at reducing cetacean bycatch, the use of pingers would not
be included in the final rule. NMFS also proposed to reconvene the
PCTRT prior to publishing a final rule requiring the mandatory use of
pingers in the CA/OR DGN fishery to solicit its input on whether
pingers should be mandatory.
Preliminary final results from the pinger experiment indicate that
cetacean entanglement and pinger use is statistically dependent (Chi-
square test, p=0.006)(NMFS, unpublished data). Out of 420 observed sets
during the pinger experiment, 25 sets were observed with cetacean
entanglement; 4 of these sets had pingers and 21 did not have pingers.
The odds of entanglement decrease from 0.099/set without pingers to
0.022/set with pingers or a decrease of over 75 percent.
Based on the dramatic results from the 1996/1997 pinger experiment,
the Team recommended by consensus during its May 1997 meeting that the
use of pingers be mandatory for all vessels in the CA/OR DGN fishery
beginning in the 1997/1998 fishing season. Nevertheless, the team
expressed concern about whether a sufficient supply of NMFS-approved
pingers would be available at the start of the swordfish fishing season
(August 15). At this time, NMFS is aware of only one manufacturer that
produces a pinger consistent with the specifications in the final rule.
This manufacturer is currently producing these pingers and they should
be available by the effective date of this rule. In addition,
information on the distribution of fishing effort in the CA/OR DGN
fishery over the last few years indicates that the peak of fishing
effort occurs after September 30 each year (CDFG unpublished data).
Because cetacean entanglement is significantly correlated with fishing
effort, the highest levels of incidental entanglement also occurs after
September 30 (PCTRP, 1996). However, NMFS recognizes that vessel
operators require sufficient notice to purchase pingers in advance of
the date that pingers are required to be deployed. For these reasons,
the pinger requirements described under section 229.31(c) will be
effective for the 1997/1998 fishing season on October 30, 1997. During
subsequent seasons (e.g., 1998/1999), pinger requirements will be
mandatory during the entire fishing season.
Although the Team concurred with the pinger specifications and
configurations in the proposed rule, they suggested that the final rule
include a mechanism to allow for limited experimentation with
alternative pinger specifications and configurations in the fishery.
The Team recommended that any pinger experiment undergo peer review and
the experiment should not detract from the NMFS's CA/OR DGN fishery
observer program or the fishery's requirements to meet bycatch
reduction goals of the MMPA. The Team also suggested that new
manufactures of pingers have their pinger ``certified'' by an
independent company that they meet NMFS' pinger specifications.
Under this final rule, pingers must be used on all vessels, during
every set, and during the entire fishing season. A pinger is an
acoustic deterrent device which, when immersed in water, broadcasts a
sound frequency range of approximately 10 kHz at 132 dB re 1
micropascal at 1 m with a pulse duration of 300 milliseconds and a
pulse rate of 4 seconds. This rule also allows for limited
experimentation in the fishery to test the effectiveness of pingers
with alternative specifications and alternative pinger configurations
on the net. Experimental protocols will undergo peer review to ensure
scientific credibility. If better information on the hearing
sensitivity of cetaceans incidentally taken in the CA/OR DGN fishery or
if experimental results indicate that different pinger specifications/
configurations would be more effective at reducing cetacean bycatch,
NMFS may require that different pingers be used in the fishery. At that
time, NMFS would publish proposed pinger specifications and/or pinger
configurations and provide opportunity for public comment. For the
reasons described previously (see Responses to Comments section), the
final rule does not require new manufactures of pingers to be
``certified'' by an independent company
[[Page 51811]]
that their pingers meet the NMFS specifications under section
229.31(c)(1).
In order to better enforce the pinger requirement, the PCTRT
recommended that NMFS require any driftnet vessel with swordfish or
shark onboard to have pingers. Although NMFS agrees that drift gillnet
vessels that are at sea should be required to have pingers onboard, it
believes that pingers should be on the drift gillnet vessel at all
times, even when no shark or swordfish are on the boat. Regardless of
whether drift gillnet sets catch swordfish or shark, these sets may
still incidentally entangle cetaceans. For these reasons, the final
rule stipulates that anytime a CA/OR DGN fishery vessel is at sea with
a multifilament drift gillnet onboard, the vessel must carry a
sufficient number of pingers to meet the configuration requirements set
forth under section 229.31(c)(3).
Voluntary Program To Reduce the Number of Gillnet Permits (Strategy
#3)
In August 1996, the PCTRT recommended two approaches for limiting
the potential expansion of fishing effort by permit holders in
California and Oregon (Strategy #3, draft PCTRP 1996). At its May 1997
meeting, the Team continued to support its original recommendation
under Strategy #3, but recommended that the language in the preamble be
more consistent with the draft Plan. For example, in the preamble to
the proposed rule NMFS states that it would encourage ODFW to continue
issuing the same number of permits as were issued in 1996. However, the
draft plan states that ODFW should be encouraged to issue a ``maximum
of 10 permits each year.'' NMFS agrees and further clarifies that it
was the intent of this recommendation that ODFW issue no more than 10
permits each year. Furthermore, the preamble states that nearly a third
of the drift gillnet permittees annually satisfy only the minimum CDFG
requirements to keep their permits valid. The Team wanted NMFS to
clarify that the draft Plan states that almost a third of CDFG
permittees are relatively inactive, fishing on an extremely limited
basis and only, apparently, to maintain their CDFG drift gillnet
permit. NMFS concurs.
Skipper Education Workshops (Strategy #4)
In August 1996, the PCTRT recommended that NMFS conduct mandatory
skipper workshops on the components of the PCTRP, together with expert
skipper panels, to further generate and consider potential, additional
take reduction strategies (draft PCTRP, 1996). At its May 1997 meeting,
the team concurred with the proposed rule's requirement that all vessel
operators be required to attend a skipper workshop before initiating
fishing each fishing season. However, to facilitate maximum compliance
with the requirement during 1997, they recommended the language in the
final rule indicate that for the 1997/1998 fishing season, skippers
must have attended a workshop after the date of the last workshop to be
offered this season (e.g., September 1997) before they continue fishing
in 1997/1998. The language on subsequent year workshop requirements
should remain as stated in the proposed rule. The Team included
additional recommendations on the content of the workshops and
recommended that NMFS not issue ``certificates of attendance'' to
skippers that attend workshops, rather enforcement of the requirement
should be conducted with workshop rosters.
As recommended by the Team, NMFS conducted five skipper education
workshops during June 3-10, 1997, in the following California
locations: La Jolla, Long Beach, Morro Bay, Monterey, and Santa Rosa.
Eighty-five fishers attended these voluntary workshops at no cost to
the fishers. At the workshops, a presentation on the development and
status of the PCTRP was provided. A demonstration on pingers was
presented at the meeting along with a question/answer period. During
the second part of the workshop, current fishing strategies employed by
fishers to avoid marine mammal entanglement were discussed. This
information will be provided to the Team at its next meeting as
background for preparing additional take reduction strategies, if
necessary. Workshop participants were also provided with a
comprehensive guide to the identification of marine mammals to provide
fishers with more information on the biology and behavior of marine
mammals to assist their efforts in reducing bycatch. These guides will
also improve the accuracy of species identification indicated on the
mortality/serious injury reports fishers must submit to NMFS under its
Marine Mammal Authorization Program (MMAP). NMFS expects to hold two
additional workshops in September 1997 in Long Beach, CA, and Portland,
OR. Vessel operators who attended June 1997 Skipper Education Workshops
will not be required to attend an additional workshop before the 1997/
1998 fishing season.
After notification by NMFS, this final rule requires all CA/OR DGN
vessel operators to have attended one Skipper Education Workshop after
all workshops have been convened by NMFS in September 1997. CA/OR DGN
vessel operators are required to attend Skipper Education Workshops at
annual intervals thereafter, unless that requirement is waived by NMFS.
NMFS will provide sufficient advance notice to vessel operators by mail
prior to convening workshops.
Contingency Measures Involving a Reduction in Fishing Effort
The PCTRT strongly encouraged NMFS to modify the language in the
preamble to make it consistent with the language in the draft Plan.
NMFS agrees (see Responses to Comments section).
Other Team Recommendations
Mesh Size
Although no significant statistical correlation with cetacean
entanglement was found, the PCTRT continues to support its
recommendation that vessel owners should be encouraged to convert to 20
inch (50.8 cm) mesh when replacing old nets or panels, since the
results indicate a trend in reduction of marine mammal bycatch. The
PCTRT will continue to examine observer data to better understand the
relationship between mesh size, inter-related net characteristics
(e.g., twine size), and cetacean entanglement. NMFS agrees and
recommended that fishers convert to 20 inch (50.8 cm) mesh when
replacing nets or panels during NMFS'' June 1997 Skipper Education
Workshops and will suggest the conversion during future workshops.
Observer Program
In August 1996, the PCTRT recommended several measures to enhance
the effectiveness of NMFS'' observer program, including: (1) Achieving
20 percent observer coverage; (2) ensuring that the observer program is
targeting all possible DGN vessels, including vessels that cannot carry
an observer; and (3) ensuring that the observer program data collection
be expanded to include several additional data variables (i.e., net and
environmental characteristics) (draft PCTRP, 1996). At its May 1997
meeting, the PCTRT continued to express concerns regarding the level of
observer coverage and strongly recommended that NMFS achieve 20 percent
observer coverage. The PCTRT emphasized that the observer program
should re-evaluate its determinations of whether a vessel is
``unobservable'' and should make an effort to observe the smaller boats
that cannot accommodate an observer (via independent observation
platforms).
[[Page 51812]]
NMFS should cross-reference CDFG permittee lists with MMAP information
to ensure that all fishers who participate in the fishery are included
in the program. The PCTRT also recommended that NMFS develop a
reporting mechanism on observer data forms for expediting the
enforcement of the requirements of the final rule because failure to
comply with take reduction strategies could jeopardize the effort to
reduce cetacean entanglement. All elements in the draft Plan regarding
observer reporting forms should be included in the observer reporting
forms for the next fishing season (1997/1998) and beyond (e.g., surface
water temperature and cloud cover). The Team recommended that observers
periodically check to determine if pingers are functioning.
Since NMFS received the draft PCTRP (1996) in August 1996, it has
implemented several of the suggestions from the PCTRT regarding the
observer program. For example, the Southwest Region, NMFS, has
reevaluated its previous determinations as to whether vessels are
unobservable and has reviewed the CDFG permittee list. The Southwest
Region has also incorporated the PCTRT's recommended changes to the
observer data forms and observers will check whether pingers on
observed sets are functioning. Furthermore, the goal of the CA/OR DGN
fishery observer program is to observe 20 percent of the annual fishing
effort and the program will continue to strive to achieve this coverage
within the constraints of available funding. At this time, NMFS does
not have the funding to operate an independent observer platform.
1998 Team Meeting
The Team recommended that NMFS reconvene the Team in March 1998,
preferably after the meeting of the Pacific Scientific Review Group.
This would allow the PCTRT sufficient opportunity to review key
information on the status of strategic stocks and integrate this
information into its ongoing evaluation of the efficacy of Plan
strategies. NMFS agrees and intends to reconvene the PCTRT in March
1998 to monitor the implementation of the final PCTRP.
Other Comments
NMFS received information after the close of the proposed rule's
comment period, during the Skipper Education Workshops in June 1997,
that suggested that a small portion of the CA/OR DGN fleet (e.g.,
approximately 10 vessels) uses fishing strategies or gear that may not
require pingers to be placed on both the floatlines and leadlines.
Specifically, this sector of the fleet: (1) Targets only thresher
shark; (2) fishes in shallow water near the coast (e.g., 3-40 miles
(4.83-64.36 km) from shore); (3) uses a smaller net (e.g., 600 fathoms
(3600 ft or 1097 m) long, 45-80 meshes deep); (4) does not fish on a
thermocline; (5) uses smaller boats (e.g., 30-40 ft (9.12-12.19 m)
long); and (6) makes short trips (1-2 days). As a result, the commenter
believes that they should be reclassified as a different fishery or
only be required to place pingers on the floatline.
Under section 118 of the MMPA, NMFS is required to reexamine, and
after notice and opportunity for public comment, the classification of
commercial fisheries on at least an annual basis. On May 27, 1997, NMFS
published a proposed List of Fisheries for 1998 (62 FR 28657) and
expects the final List of Fisheries to be published within a few
months. NMFS will reexamine the categorization and definition of the
CA/OR DGN fishery in 1998 when it annually reexamines its
classification of fisheries. Furthermore, NMFS will request that the
PCTRT at its next meeting evaluate whether certain vessels targeting
only thresher shark should be classified as another fishery and/or have
different requirements under the PCTRP (March 1998). At this time, NMFS
is not modifying its final rule to establish separate requirements for
vessels targeting thresher shark. NMFS' Changes to the Draft Plan, 1997
PCTRT Recommendations, and Changes to the Proposed Rule to Implement
the Plan.
NMFS adopts the draft plan as submitted by the PCTRT (PCTRP, 1996)
and recommendations from the 1997 PCTRT meeting (PCTRT, 1997), except
for the following minor changes. NMFS has determined that
implementation of the take reduction plan, as modified, and
implementation of this final rule is expected to reduce, within 6
months of its implementation, mortalities and serious injuries of all
strategic stocks that are taken by the CA/OR drift gillnet fishery to
below the PBR level for each stock.
The PCTRT recommended that if the results from a pinger experiment
indicate pingers are effective at reducing cetacean bycatch, then the
use of pingers should be mandatory. In contrast, before final results
from the 1996/1997 pinger experiment in the CA/OR DGN fishery were
available, NMFS proposed the mandatory use of pingers in the proposed
rule to implement the PCTRP. This final rule requires the use of
pingers in the fishery.
The PCTRT recommended during its 1997 meeting that NMFS require any
driftnet vessel with swordfish or shark on board to have pingers. Under
the proposed rule and this final rule, pingers are required to be on
the vessel at all times when the vessel is at sea, even when no shark
or swordfish are on the boat.
The team recommended that pingers be required in the fishery by
August 15, 1997. The proposed rule did not specify a certain date that
pingers would be required. The final rule requires the use of pingers
by vessels in the CA/OR DGN fishery to be effective for the 1997/1998
fishing season 30 days after filing of this final rule for public
inspection at the Office of the Federal Register. During subsequent
seasons (e.g., 1998/1999), pinger requirements will be mandatory during
the entire fishing season.
The draft PCTRP (1996) and proposed rule stipulated that pingers
must be attached on both the floatline and leadline and spaced no more
than 300 ft (91.44 m) apart, in order to insure that the pingers were
broadcasting sound over the entire area of the net. During the pinger
experiment, pingers were attached to the floatlines and leadlines with
approximately 1 and 6 ft (0.30 and 1.82 m) lanyards, respectively.
Results from this experiment indicate that attaching pingers directly
to buoy lines (i.e., extenders) may be a more efficient attachment
method because it would facilitate pinger attachment. Pingers attached
in this manner would not require individual attachment and removal to
and from the floatline during each set, because this would
automatically occur during routine extender attachment/removal. For
example, if extenders were attached to the net at 100 ft (30.48 m)
intervals, one pinger could be attached to every third extender and the
300 ft (91.44 m) spacing requirement would be maintained. For these
reasons, the final rule authorizes the placement of pingers on
extenders as long as the 300 ft (91.44 m) spacing requirement is
maintained near the floatline and pingers are no more than 3 ft above
the floatline. In addition, this final rule authorizes pingers to be
attached to the leadline with lanyards that are up to 6 ft (1.83 m) in
length.
Deployment of pingers during the 1996/1997 pinger experiment
demonstrated that pinger performance is dependent on following
manufacturer's operating instructions and minimizing exposure of
battery packs to saltwater. For example, during the first few weeks of
the pinger experiment, silicon grease was not applied to O-rings prior
to pinger placement which resulted in a limited number of pingers
leaking and becoming nonfunctional. Also, because
[[Page 51813]]
the pingers used in the experiment were not designed with on/off
switches, the experimental protocol included the removal of battery
packs after each set to preserve battery life. This procedure greatly
increased the probability that the pinger battery packs would be
exposed to saltwater and malfunction. However, NMFS found that battery
life is much longer than originally estimated and does not foresee the
need to remove the batteries after every set. Reducing battery exposure
to saltwater will substantially decrease pinger malfunction. For these
reasons, NMFS recommends that if drift gillnet fishers use pingers that
do not have on/off switches, fishers follow manufacturer's deployment
instructions closely and minimizing the frequency of battery pack
removal (i.e., just keep them pinging for the entire trip) to reduce
its potential exposure to seawater and possible pinger malfunction.
The PCTRT recommended during its 1997 meeting that NMFS require any
manufacturer of pingers to provide independent certification that a new
prototype meets the specifications under Sec. 229.31(c)(1). The PCTRT
made this recommendation because it thought the definition of the term
``NMFS-approved pinger'' was unclear in the proposed rule. Although the
proposed rule described the sound specifications for pingers, NMFS
agrees that the term ``NMFS-approved'' was unclear. Nevertheless, NMFS
does not agree that manufacturers should be required to have an
``independent company'' certify that new prototype pingers meet the
pinger specifications under Sec. 229.31(c)(1); most manufacturers have
the equipment and expertise to test pinger sound characteristics. Of
course, manufactures of new pinger prototypes will need to provide
documentation that their pingers meet the specifications of the final
rule. For these reasons, any reference to the term ``NMFS-approved''
has been removed from the final rule; in addition, the final rule does
not require that manufacturers of new prototype pingers have an
``independent company'' certify that their pingers meet the
specification under Sec. 229.31(c)(1).
Classification
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule will not have a
significant economic impact on a substantial number of small entities.
No comments were received during the public comment period regarding
this certification. As a result, no final regulatory flexibility
analysis has been prepared.
The Assistant Administrator for Fisheries, NOAA (AA) has
determined, based on an EA prepared under the National Environmental
Policy Act, that implementation of these regulations would not have a
significant impact on the human environment. As a result of this
determination, an environmental impact statement is not required. A
copy of the EA prepared for this rule is available upon request (see
ADDRESSES).
This rule has been determined to not be significant for purposes of
E.O. 12866.
References
Barlow, J., R.L. Brownell Jr., D.P. DeMaster, K.A. Forney, M.S.
Lowry, S. Osmek, T.J. Ragen, R.R. Reeves, and R.J. Small. 1995. U.S.
Pacific Marine Mammal Stock Assessments. NOAA Technical Memorandum
NMFS, NOAA-TM-NMFS-SWFSC-219. 162 p.
NMFS. 1997a. Draft Environmental Assessment: Use of Acoustic Pingers
as a Management Measure in Commercial Fisheries to Reduce Marine
Mammal Bycatch. NMFS, Office Of Protected Resources, Silver Spring,
MD.
NMFS. 1997b. Environmental Assessment: Final Regulations to
Implement the Pacific Offshore Cetacean Take Reduction Plan, Under
Section 118 of the Marine Mammal Protection Act. August 1997.
PCTRP. 1996. Final Draft, Pacific Offshore Cetacean Take Reduction
Plan. Draft plan submitted to the National Marine Fisheries Service
and prepared by the Pacific Cetacean Take Reduction Team. August
1995. 75 p.
PCTRT. 1997. 1997 Recommendations Report: Pacific Offshore Cetacean
Take Reduction Team. July 1997. 5 p.
PSRG. 1997. Recommendations of the Pacific Scientific Review Group
from the May 1997 meeting. Unpublished document.
Reeves, R.R., R.J. Hofman, G.K. Silber, D. Wilkinson. 1996. Acoustic
Deterrence of Harmful Marine Mammal-Fishery Interactions:
Proceedings of a Workshop held in Seattle, Washington, 20-22 March
1996. NOAA Technical Memorandum, NMFS-OPR-10. 70 p.
List of Subjects in 50 CFR Part 229
Administrative practice and procedure, Confidential business
information, Fisheries, Marine mammals, Reporting and recordkeeping
requirements.
Dated: September 16, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries.
For the reasons set out in the preamble, 50 CFR part 229 is amended
as follows:
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
1. The authority citation for part 229, subpart C continues to read
as follows:
Authority: 16 U.S.C. 1361 et seq.
2. In subpart C, Sec. 229.31 is added to read as follows:
Sec. 229.31 Pacific Offshore Cetacean Take Reduction Plan.
(a) Purpose and scope. The purpose of this section is to implement
the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b)
through (d) of this section apply to all U.S. drift gillnet fishing
vessels operating in waters seaward of the coast of California or
Oregon, including adjacent high seas waters. For purposes of this
section, the fishing season is defined as beginning May 1 and ending on
January 31 of the following year.
(b) Extenders. Extenders (buoy lines) of at least 6 fathoms (36 ft;
10.9 m) must be used on all sets.
(c) Pingers. (1) For the purposes of this paragraph (c), a pinger
is an acoustic deterrent device which, when immersed in water,
broadcasts a 10 kHz ( 2 kHz) sound at 132 dB (
4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15
milliseconds), and repeating every 4 seconds (+ .2 seconds); and
remains operational to a water depth of at least 100 fathoms (600 ft or
182.88 m).
(2) Pingers must be used on all vessels, during every set beginning
October 30, 1997. While at sea, drift gillnet vessels with
multifilament gillnets onboard must carry enough pingers to meet the
configuration requirements set forth under paragraph (c)(3) of this
section.
(3) Pingers must be attached on or near the floatline and on or
near the leadline and spaced no more than 300 ft (90.9 m) apart.
Pingers attached on extenders, or attached to the floatline with
lanyards, must be within 3 ft (0.91 m) of the floatline. Pingers
attached with lanyards to the leadline must be within 6 ft (1.82 m) of
the leadline. Pingers on or near the floatline and on or near the
leadline must be staggered, such that the horizontal distance between a
pinger on or near the floatline and a pinger on the leadline is no more
than 150 ft (45.5 m). Any materials used to weight pingers must not
change its specifications set forth under paragraph (c)(1) of this
section.
(4) The pingers must be operational and functioning at all times
during deployment.
[[Page 51814]]
(5) If requested, NMFS may authorize the use of pingers with
specifications or pinger configurations differing from those set forth
in paragraphs (c)(1) and (c)(3) of this section for limited,
experimental purposes within a single fishing season.
(d) Skipper education workshops. After notification from NMFS,
vessel operators must attend a skipper education workshop before
commencing fishing each fishing season. For the 1997/1998 fishing
season, all vessel operators must have attended one skipper education
workshop by October 30, 1997. NMFS may waive the requirement to attend
these workshops by notice to all vessel operators.
[FR Doc. 97-26330 Filed 9-30-97; 4:50 pm]
BILLING CODE 3510-22-P
