[Federal Register Volume 63, Number 44 (Friday, March 6, 1998)]
[Rules and Regulations]
[Pages 11161-11167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5834]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 971201282-8049-02; I.D. 102897B]
RIN 0648-AK38
Halibut Fisheries in U.S. Convention Waters Off Alaska; Fisheries
of the Exclusive Economic Zone Off Alaska; Management Measures to
Reduce Seabird Bycatch in the Hook-and-Line Halibut and Groundfish
Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues regulations to require operators of vessels
fishing for Pacific halibut in U.S. Convention waters off Alaska to
conduct fishing operations in a specified manner and to employ
specified measures intended to reduce seabird bycatch and incidental
seabird mortality. This rule also amends the regulations requiring
seabird bycatch avoidance measures in the hook-and-line groundfish
fisheries of the Bering Sea and Aleutian Islands management area (BSAI)
and the Gulf of Alaska (GOA) to exempt small vessels from some of the
requirements and to clarify one of the measures. The Pacific halibut
fishery measures are intended to mitigate interactions with the short-
tailed albatross (Diomedea albatrus), an endangered species protected
under the Endangered Species Act (ESA), and with other seabird species
in fisheries in and off Alaska.
DATES: Effective April 6, 1998.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for
this final rule may be obtained from NMFS at P.O. Box 21668, Juneau, AK
99802, Attn: Lori J. Gravel, or by calling the Alaska Region, NMFS, at
907-586-7228. Copies of the EA/RIR/FRFA prepared for the action
requiring seabird avoidance measures in the BSAI and GOA groundfish
hook-and-line fisheries are also available from the above address.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION: The U.S. groundfish fisheries of the GOA and
the BSAI in the exclusive economic zone are managed by NMFS under the
Fishery Management Plan for Groundfish of the Gulf of Alaska and the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area (FMPs). The FMPs were prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.;
Magnuson-Stevens Act) and are implemented by regulations for the U.S.
fisheries at 50 CFR part 679. General regulations that also pertain to
U.S. fisheries appear at subpart H of 50 CFR part 600. The Northern
Pacific Halibut Act of 1982 (Halibut Act), 16 U.S.C. 773 et seq.,
authorizes the Council to develop and NMFS to implement halibut fishery
regulations that are in addition to, and not in conflict with,
regulations adopted by the International Pacific Halibut Commission
(IPHC). Furthermore, the Magnuson-Stevens Act and the Halibut Act
authorize the Council and NMFS to make regulatory changes that are
consistent with the FMPs and that are necessary to conserve and manage
the fixed gear Pacific halibut fisheries.
Background
The issue of seabird bycatch and incidental mortality in commercial
fishing operations has been heightened in recent years. Further
information on this issue was provided in the preambles to the proposed
and final rules implementing seabird avoidance measures in the BSAI and
GOA hook-and-line groundfish fisheries (62 FR 10016, March 5, 1997; 62
FR 23176, April 29, 1997), in the EA/RIR/FRFA prepared for that action,
in the preamble to the proposed rule for this action (62 FR 65635,
December 15, 1997), and in the EA/RIR/FRFA prepared for this action. In
addition, the United States is working with the United Nations' Food
and Agriculture Organization to conduct a technical consultation on
implementing mitigation measures to reduce seabird bycatch in longline
fisheries around the world (62 FR 42766, August 8, 1997). NMFS and the
U.S. Fish & Wildlife Service (USFWS) are the U.S. co-leaders in this
effort.
Recent takes of the endangered short-tailed albatross (two in 1995
and one in 1996) in hook-and-line groundfish fisheries in the BSAI and
the GOA underscore a seabird bycatch problem. At its December 1996
meeting, the Council voted unanimously to recommend that all hook-and-
line vessels fishing for groundfish in the GOA and BSAI be required to
use certain seabird bycatch avoidance measures intended to reduce the
incidental mortality of the short-tailed albatross and other seabird
species. Furthermore, the Council recommended that these or similar
measures be implemented in the Pacific halibut fishery in U.S.
Convention waters off Alaska. Addressing a potential seabird bycatch
problem in the Pacific halibut fishery is warranted, given the
similarities between the Pacific halibut fishery and the hook-and-line
groundfish fisheries. At its annual meeting in January 1997, the IPHC
reviewed and concurred with the development of seabird avoidance
measures for the Pacific halibut fishery in U.S. Convention waters off
Alaska.
At its June 1997 meeting, the Council recommended extending the
seabird avoidance requirements in the Alaska hook-and-line groundfish
fisheries to the Pacific halibut fishery in U.S. Convention waters off
Alaska. The Council also recommended that vessels less than 26 ft (7.9
m) length overall (LOA) in the Pacific halibut fishery and in the GOA
and BSAI hook-and-line groundfish fisheries be exempt from some of the
specified seabird avoidance measures.
NMFS published a proposed rule in the Federal Register on December
15, 1997 (62 FR 65635) that proposed seabird avoidance measures for the
Pacific halibut fishery in U.S. Convention waters off Alaska. Public
comment was invited through January 14, 1998. Two letters containing
nine comments were received by the end of the comment period. One
letter of six comments was received after the close of the public
comment period and addressed two new issues that are addressed under
the Response to Comments section.
Pursuant to section 7 of the ESA, NMFS initiated a consultation on
the Pacific halibut fishery and proposed regulatory measures to reduce
seabird mortality in this fishery with the USFWS in April 1997. In
October 1997, NMFS revised the Pacific halibut fishery consultation and
initiated an informal consultation on the proposed regulatory measure
to exempt vessels less than 26 ft (7.9 m) LOA using hook-and-line gear
in the groundfish fisheries in the BSAI or GOA from some of the seabird
avoidance measures. In January 1998, USFWS concluded the informal
consultation and concurred with
[[Page 11162]]
NMFS's assessment that the proposed regulatory measures to reduce
seabird mortality in the Pacific halibut fishery and the regulatory
exemption for vessels less than 26 ft (7.9 m) LOA using hook-and-line
gear in the groundfish fisheries in the BSAI or GOA or in the Pacific
halibut fishery are not likely to adversely affect the short-tailed
albatross. The consultation on the Pacific halibut fishery itself will
be concluded prior to the commencement of the fishery in March 1998.
Required Seabird Bycatch Avoidance Gear and Methods in the Pacific
Halibut Fishery
After considering the public comments received, NMFS is
implementing the following management measures designed to reduce the
incidental mortality of seabirds. These measures apply to operators of
vessels fishing with hook-and-line gear for Pacific halibut in U.S.
Convention waters off Alaska. These measures are unchanged from those
proposed in the Federal Register (62 FR 65635, December 15, 1997).
1. All such operators must conduct fishing operations in the
following manner:
a. Use hooks that, when baited, sink as soon as they are put in the
water. This can be accomplished by any means, including the use of
weighted groundlines and/or thawed bait;
b. If offal is discharged while gear is being set or hauled, it
must be discharged in a manner that distracts seabirds from baited
hooks, to the extent practicable. The discharge site on board a vessel
must either be aft of the hauling station or on the opposite side of
the vessel from the hauling station; and
c. Make every reasonable effort to ensure that birds brought aboard
alive are released alive and that, wherever possible, hooks are removed
without jeopardizing the life of the bird.
2. All such operators of vessels greater than or equal to 26 ft
(7.9 m) LOA must also employ one or more of the following seabird
avoidance measures:
a. Set gear between hours of nautical twilight using only the
minimum vessel's lights necessary for safety;
b. Tow a streamer line or lines during deployment of gear to
prevent birds from taking hooks;
c. Tow a buoy, board, stick or other device during deployment of
gear at a distance appropriate to prevent birds from taking hooks.
Multiple devices may be employed; or
d. Deploy hooks underwater through a lining tube at a depth
sufficient to prevent birds from settling on hooks during deployment of
gear.
This final rule also removes a regulation at 50 CFR
679.24(e)(1)(ii) that effectively exempted halibut fishermen from
having to use seabird avoidance gear and methods. When the seabird
avoidance measures were promulgated for the Alaska groundfish
fisheries, halibut fishermen were exempt until the Council and the IPHC
could address this issue in the Pacific halibut fishery. This exemption
is no longer appropriate.
Revision of Seabird Avoidance Gear and Methods in the Alaska
Groundfish Hook-and-Line Fisheries
This final rule revises the seabird avoidance gear and methods
required to be employed by operators of vessels using hook-and-line
gear in the groundfish fisheries in the BSAI and GOA to exempt
operators of vessels less than 26 ft (7.9 m) LOA from the requirement
to employ one or more of the measures set forth under 2., above. They
are still required to comply with the measures set forth under 1.,
above.
This final rule also revises the seabird bycatch avoidance
regulations applicable to the BSAI and GOA groundfish fishery to
clarify that NMFS intent is that, if offal is discharged while gear is
being hauled, it must be discharged in a manner that distracts
seabirds, to the extent practicable, from baited hooks. Some persons
had misinterpreted the existing regulation as requiring offal to be
discharged during the setting or hauling of gear. This was not NMFS'
intent.
These two revisions to the seabird avoidance regulations applicable
to the BSAI and GOA groundfish fisheries make these regulations the
same as the regulations applicable to the Pacific halibut fisheries in
U.S. Convention waters.
Suggestions for Streamer Line Construction
In response to public comment, NMFS reiterates suggestions for
streamer line construction. Guidelines were published initially in the
Federal Register on March 5, 1997 (62 FR 10016) and subsequently
revised in the preamble to the final rule requiring seabird avoidance
measures in the GOA and BSAI groundfish hook-and-line fisheries (62 FR
23176, April 29, 1997).
NMFS revised the guidelines on streamer line construction based on
information that indicated streamer line construction should account
for variable vessel sizes and gear deployment speeds (New Zealand
Department of Conservation, 1997). Large vessels equal to, or greater
than, 125 ft (38.1 m) LOA deploying gear at approximately 5 knots may
require a thicker dimension of streamer line (for example, 8
millimeters (mm)), than smaller vessels of less than 125 ft (38.1 m)
LOA that deploy gear at faster speeds of 7 to 8 knots and that may
require streamer lines constructed of material only 5 mm in diameter.
The following are the key characteristics of an effective streamer
line:
1. All materials used to construct the streamer line and to hold
the streamer line in place are strong enough to withstand all weather
conditions in which hook-and-line fishing activity is likely to be
undertaken;
2. The streamer line is attached to a pole at the stern of the
vessel and positioned such that it will be directly above the baited
hooks as they are deployed;
3. The height of the streamer line at the point of attachment is 4
to 8 m above sea level;
4. The streamer line for all vessel sizes is constructed of
material that is between 5 and 8 mm in diameter;
5. The length of streamer line is a minimum of 150 to 175 m for all
vessel sizes;
6. The number of streamers attached to a streamer line is 6 to 10
pairs;
7. The streamers are made of a heavy, flexible material to allow
them to move freely and flop unpredictably (for example, streamer cord
inserted inside a red polyurethane tubing);
8. The streamer pairs are attached to the bird streamer line using
a 3-way swivel or an adjustable snap;
9. The streamers should just skim above the water's surface over
the baited hooks.
These characteristics should be taken into consideration when
employing a bird streamer line. NMFS may propose that these or similar
technical specifications for streamer lines be included in regulations
after testing has occurred and information is available on the
effectiveness of specifically constructed streamer lines in the Alaskan
hook-and-line fisheries.
Evaluation of Effectiveness of Seabird Avoidance Measures
For background information on this topic, see the preamble to the
final rule requiring seabird avoidance measures in the GOA and BSAI
groundfish hook-and-line fisheries (62 FR 23176, April 29, 1997). NMFS
continues to endorse the testing of seabird avoidance measures used in
the Alaska hook-and-line fisheries.
In coordination with the USFWS, NMFS is developing a research plan
to test the effectiveness of the required measures, as required by
USFWS's Biological Opinion issued on February
[[Page 11163]]
19, 1997. Substantial progress has been made on the development of such
a test plan in coordination with the USFWS. The test plan will test the
effectiveness of seabird avoidance measures in two phases: (1)
experimental tests of select measures, and (2) an observer phase that
would apply the experimental results in the commercial fisheries. Given
that very few experimental tests of seabird avoidance measures have
occurred in the world (and none in Alaska), methodologies to be used in
the experimental testing phase would first be developed in a pilot
study. Implementation of either phase of the test plan is dependent
upon the availability of adequate funding.
When such tests have occurred and information is available as to
the effectiveness and practicability of specific seabird avoidance
measures in the Alaska hook-and-line fisheries, NMFS may revise the
regulations to reflect such findings. Currently, no new information
about the effectiveness of the regulations exists that would warrant
NMFS revising the seabird avoidance measures at this time.
Response to Comments
Comment 1. NMFS failed to promulgate seabird avoidance regulations
in the Pacific halibut fishery in a timely fashion despite the
recommendations of the Council at its December 1996 meeting.
Response. NMFS disagrees. The Council's initial December 1996
recommendations were directed at requiring seabird avoidance measures
in the groundfish fisheries. Although, the Council indicated that
similar measures were to be implemented for the Pacific halibut
fishery, a target date was not specified. NMFS and the Council planned
to initiate a separate rulemaking for the Pacific halibut fishery in
order to allow the IPHC to first review the proposed measures. The
Halibut Act authorizes the Council to develop and NMFS to implement
regulations concerning halibut that are in addition to, and not in
conflict with, regulations adopted by the IPHC. The IPHC was provided
an opportunity to review the proposed regulations at its January 1997
meeting. After receiving IPHC concurrence in January, the Council took
final action on proposed measures in the Pacific halibut fishery in
June, 1997. Given the time required to prepare proposed and final
rulemaking and allow for a public comment period, implementation has
not been untimely.
Comment 2. NMFS ignored every recommendation that was submitted by
the environmental community in response to the proposed regulations for
seabird avoidance measures in the Alaska groundfish hook-and-line
fisheries. Those regulations and the proposed regulations for the
Pacific halibut fishery deviate substantially from, and are weaker
than, the Commission for the Conservation of Antarctic Marine Living
Resources (CCAMLR) regulations that NMFS promulgated for the sub-
Antarctic seas (61 FR 8483, March 5, 1996). The CCAMLR regulations
should be required in Alaska waters.
Response. At this time, NMFS disagrees that the CCAMLR regulations
should be required in Alaska waters. Given the similarities between the
Alaska groundfish hook-and-line fisheries and the Pacific halibut
fishery, NMFS proposed that the seabird avoidance measures required in
the groundfish hook-and-line fisheries also be required in the Pacific
halibut fishery. As stated in the preamble and in the ``Response to
Comments'' section of the final rule requiring seabird avoidance
measures in the Alaska groundfish hook-and-line fisheries (62 FR 23176,
April 29, 1997), differences exist between the sub-Antarctic longline
fisheries governed under the CCAMLR regulations and the Alaska hook-
and-line fisheries that warrant the differences in the regulations
meant to reduce seabird bycatch. The differences between the sub-
Antarctic longline fisheries and the Alaska hook-and-line fisheries
include (1) target species, (2) gear and gear deployment, (3) vessel
size and vessel configuration, (4) weather and sea conditions, and (5)
prevalent seabird species. Patagonia toothfish (Dissostichus
eleginoides) and southern bluefin tuna (Thunnus maccoyii) are key
target species in Southern Ocean fisheries. Patagonia toothfish is
fished with the Spanish method of bottom longlining, the gear being
more buoyant than that used in Alaska. The southern bluefin tuna is a
pelagic species fished with pelagic or surface gear. Hooks are attached
to branch lines which are attached to the mainline. The main line is
suspended between buoys, and the 35 m branch lines hang below the
mainline. The majority of the vessels are large (30-50 m) and deploy
gear either from the stern or from the side of the vessel at speeds of
10 through 13 knots. The prevalent seabird species incidentally taken
are albatrosses and petrels.
In contrast, the Pacific halibut fishery targets halibut, a
demersal species fished with bottom gear consisting of groundlines,
usually 0.54 km long, with hooks attached to 1 to 1.5 m gangions spaced
from 1.5 to 7 m apart along the groundline. In general, the vessels
range in length from small skiffs in the several meter range to vessels
of 20 through 30 m. Most vessels deploy gear from the stern at speeds
of 5 to 7 knots. The prevalent seabird species incidentally taken in
the Pacific halibut fishery have not been determined. Given that the
halibut fishery occurs in much the same areas as the groundfish
fisheries, the species most likely to be taken incidentally are fulmars
and gulls in the BSAI, and fulmars and albatross in the GOA.
Bottom gear used in the Pacific halibut fishery is designed to sink
quickly to reach the bottom where fishing occurs. Traditionally,
gangions have been tied to the groundline at a set spacing
(``conventional'' gear), but, more recently, gangions have sometimes
been attached to the groundline with a snap fastener (``snap-on''
gear). Conventional gear is set and retrieved as coils, while snap-on
gear is set and retrieved on drums. Several groundline units, called
skates, are strung together for a fishing unit, weighted with anchors
attached to buoys and buoylines. Conventional gear is deployed off the
stern over a chute that uses centrifugal force to straighten out the
gangion and drop the bait away from the groundline to minimize tangles.
Snap-on gear is deployed directly off the drum. With both types of
bottom gear, the groundline and bait float for a few seconds before
anchors (about 20 kg), and sometimes additional weights (0.5-2 kg)
cause them to sink. Sinking rates vary with the vessel. Bottom gear is
hauled amidships over a roller. In contrast, surface or pelagic gear
used in Southern Ocean fisheries is designed to fish mid-water and may
be more buoyant and not sink as quickly. The predominant number of
relatively small vessels in the Pacific halibut fishery (approximately
2100 vessels, 7-30 m) raises safety concerns with night-setting of gear
as required by CCAMLR regulations (approximately 15-30 vessels, 30-46
m). The technical standards for streamer lines in CCAMLR regulations is
not appropriate for the gear deployment speed used by the majority of
the vessels in the Pacific halibut fishery. No studies have been
conducted on the effectiveness of CCAMLR seabird avoidance measures on
Alaskan bird species. It is not known if the effectiveness of these
measures is taxonomically dependent.
The CCAMLR regulations reflect the development of seabird avoidance
measures designed for specific fisheries and operating conditions.
Current information suggests that seabird avoidance techniques
appropriate for one fishery may not be appropriate for
[[Page 11164]]
another (Duckworth, 1995; CCAMLR, 1996). CCAMLR has been refining its
conservation measures each year since 1990, based upon experience in
the Southern Ocean fisheries and is attempting to develop the right set
of measures based upon the conditions in the CCAMLR fisheries.
Management agencies must assess the needs in a particular fishery and
employ measures that are practicable for that fishery. Nigel Brothers
of Australia, the primary author of ``Catching Fish Not Birds,'' and
the CCAMLR publication ``Fish the Sea Not the Sky'' report that the
most applicable solutions for preventing seabirds from taking baits
depend on the vessel, its size, the crew, weather and sea conditions,
and the time and place fishing occurs. Regulations for a particular
fishery must take these factors into consideration. While certain of
the CCAMLR regulations appear to be appropriate for the Pacific halibut
fishery and are incorporated into this final rule, others may be
implemented only if further investigation demonstrates their
practicability in the Pacific halibut fishery.
USFWS believes that implementation of the proposed measures is not
likely to adversely affect the short-tailed albatross (USFWS, 1998).
Implementation of specific requirements, such as those adopted by
CCAMLR, would not be prudent at this time because no information is
available on the effectiveness of these measures with the gear and
conditions of Alaska's hook-and-line fisheries. Studies on the
effectiveness of seabird bycatch avoidance devices in other fisheries
are very limited, and conclusions from those studies are based on small
sample sizes. Testing the effectiveness of the required seabird
avoidance measures will allow NMFS to better ascertain the
effectiveness of these measures in the Alaska fisheries. NMFS continues
to work with USFWS to develop an appropriate research plan, as
discussed here. When such tests have occurred and information is
available as to the effectiveness and practicability of specific
seabird avoidance measures in the Alaska hook-and-line fisheries, NMFS
may revise the regulations to reflect such findings.
Comment 3. NMFS's proposed amendment to clarify the offal discharge
requirement in the Alaska groundfish hook-and-line fisheries is an
improvement. Nevertheless, the regulation adopted under CCAMLR is
preferable because it prohibits the discharge of offal at any time
while gear is being set and requires that the discharge of offal during
the haul be avoided as far as possible. NMFS should require the same in
Alaska waters.
Response. NMFS agrees that the Alaska offal discharge regulation,
as revised, is clearer. NMFS disagrees that the regulation should be
replaced with the CCAMLR regulation. The CCAMLR regulation does not
prohibit offal discharge as the commenter suggests. Rather, the CCAMLR
regulation states that ``the dumping of offal shall be avoided as far
as possible while longlines are being set or hauled; if discharge of
offal is unavoidable, the discharge must take place on the opposite
side of the vessel to that where longlines are set or hauled'' (61 FR
8483, March 5, 1996). In practice, the Alaska regulation is very
similar to the CCAMLR regulation. Under the Alaska regulation, offal
must be discharged in a way that distracts seabirds from baited hooks
(i.e., discharge must take place on the opposite side of the vessel to
that where longlines are set or hauled). Furthermore, a recent study of
the demersal longline fishery for toothfish (Dissostichus eleginoides)
near the Kerguelen Islands in the South Indian Ocean has shown that the
dumping of homogenized offal during gear deployment greatly reduced
incidental capture of seabirds, because birds were more attracted to
the offal than to baited hooks (Cherel et al., 1996). This finding is
similar to comments provided by Alaska longliners during the comment
period for the rule requiring seabird avoidance measures in the
groundfish hook-and-line fisheries. For practical and safety reasons,
offal discharge cannot be avoided by most of the vessels in the Pacific
halibut fishery or in the Alaska groundfish fisheries. Most of the
smaller vessels discharge offal while hauling gear. Some vessel
operators have reported that discharging offal on the opposite side of
the vessel from where gear is deployed distracts seabirds from the
baited hooks, thus reducing the potential for seabirds getting hooked.
Furthermore, some of the smaller vessels do not discharge offal at all
while fishing, but retain whole fish.
Comment 4. NMFS should not exempt vessels less than 26 ft (7.9 m)
LOA from the required use of one or more of the measures specified at
Sec. 679.24(e)(3). NMFS acknowledges that relatively little scientific
information is available regarding the relationship of vessel size to
seabird bycatch. No scientific or legal justification for this
exemption exists, and the exemption might violate the incidental take
permit and Biological Opinion from the USFWS for the short-tailed
albatross.
Response. NMFS is required by the Magnuson-Stevens Act to base all
conservation and management measures upon the best scientific
information available. The best scientific information that is
available on this subject indicates that variations between vessels in
the numbers of observed seabird catches appear to be related, at least
in part, to the extent to which birds accumulate around vessels. This,
in turn, is a function of the length of time that offal is discarded.
Smaller vessels are not as attractive to scavenging seabirds as are
larger vessels, which provide a continuous supply of food (Barnes et
al., 1997). For example, smaller vessels fishing off the southwest cape
in South Africa do not attract large numbers of scavenging birds
because hauling and setting periods are much shorter and irregular and
the offal is available to birds only for short periods of time and in
small quantities (Barnes et al., 1997). This scientific information, in
conjunction with information about the typical fishing practices of
small vessels that was presented in the proposed rule (62 FR 65635),
indicates that vessels of less than 26 ft (7.9 m) LOA are less likely
to have a seabird bycatch problem than larger vessels. As noted in the
response to comment 3, some of the smaller vessels do not discharge
offal at all and are even less attractive to scavenging seabirds. In
January 1998, USFWS concluded an informal consultation and concurred
with NMFS's assessment that the proposed regulatory measures to reduce
seabird mortality in the Pacific halibut fishery and the regulatory
exemption for vessels less than 26 ft (7.9 m) LOA using hook-and-line
gear in the groundfish fisheries in the BSAI or GOA or vessels less
than 26 ft (7.9 m) LOA in the Pacific halibut fishery are not likely to
adversely affect the short-tailed albatross (USFWS, 1998). Given that
operators of vessels less than 26 ft (7.9 m) LOA using the proposed
measures are not likely to adversely affect the short-tailed albatross,
the incidental take limit established in the USFWS Biological Opinion
for the BSAI and GOA groundfish hook-and-line fisheries applies to only
vessels over 26 ft (7.9 m) LOA (USFWS, 1998).
Comment 5. NMFS should require the mandatory use of bird streamer
lines by vessels required to use seabird avoidance measures. The use of
bird streamer lines should not be optional. The cost of streamer lines
is not prohibitive, and there is no excuse for not requiring streamer
lines for large vessels, particularly those that choose
[[Page 11165]]
not to install a lining tube due to the cost of refitting.
Response. Until measures are scientifically tested in the Alaska
hook-and-line fisheries, NMFS will continue to allow some flexibility
in the application of seabird avoidance requirements. No scientific
evidence exists to indicate that the required measures are not
effective, and anecdotal information indicates that they are.
Comment 6. Setting of longline gear at night or towing a ``buoy,
board, stick, or other device'' are not sufficient alternatives to the
proven efficacy of streamer lines.
Response. As explained in the response to comment 5, no scientific
evidence exists to indicate that the required measures are not
effective, and anecdotal information indicates that they are. As
explained in the response to comment 2, the most efficacious solutions
for preventing seabirds from taking baits probably depend on
circumstances relating to the vessel, its size, the crew, weather and
sea conditions, and the time and place at which fishing occurs. Each of
these factors must be considered when designing regulations for a
particular fishery. Testing the effectiveness and practicability of the
required seabird avoidance measures in Alaska hook-and-line fisheries
must occur before definitive comparisons can be made among measures
designed to reduce seabird bycatch in the Alaska hook-and-line
fisheries. When such tests have occurred and information is available
as to the effectiveness and practicability of specific seabird
avoidance measures in the Alaska hook-and-line fisheries, NMFS may
revise the regulations to reflect such findings. A research test plan
to test the effectiveness of the required seabird avoidance measures is
being developed in coordination with USFWS.
Comment 7. To ensure that the bait sinks quickly, NMFS should
require either that either thawed bait be used, or hooks or groundlines
be weighted, or both.
Response. One way the proposed measures would reduce the incidental
mortality of short-tailed albatrosses and other seabird species is by
preventing seabirds from attempting to seize baited hooks. Two methods
for causing baited hooks to sink as soon as they are put in the water
are using thawed bait or weighted groundlines. Although the preamble of
the proposed rule noted these methods, NMFS believes that specifying
the methods by regulation is not necessary. Rather, the regulation
requires that the hooks sink as soon as they are put in the water,
regardless which method is used. The industry should have the
flexibility to select a method that is most appropriate to the vessel
and fishing conditions.
The current scientific literature contains very limited amounts of
information on the comparative performance of vessels that employ
different bait thawing practices (Klaer and Polacheck, 1995). The
authors found that fewer seabirds were caught by hook-and-line vessels
when semi-thawed bait was used than when the bait was well-thawed. Due
to small sample sizes, it would be difficult to determine whether the
level of bait thawing had any substantial effects. Typically, the
larger halibut vessels employ automatic baiting machines that require
semi-thawed bait. Fully thawed bait cannot be used effectively in the
mechanized baiting and gear deployment used by most of the larger
vessels. Typically, the smaller halibut vessels use hand-baited gear,
requiring that the bait is either thawed or partially thawed.
A recent New Zealand study (Duckworth, 1995) found that lower
seabird bycatch rates were achieved when thawed baits were used,
although these rates were not statistically different from rates
achieved through the use of frozen baits. This study called for further
studies to measure the effectiveness of (1) the types of bait that sink
faster, and (2) the use of weighted hooks on groundlines.
The final rule establishes a performance standard for the Pacific
halibut fishery that requires baited hooks to sink as soon as they are
put in the water. Given that the specific CCAMLR provisions have not
been evaluated in Alaskan hook-and-line fisheries (see response to
comment 2) and given the limited amount of information available on
their effectiveness, NMFS believes that fishermen must have some
flexibility in meeting this performance standard.
Comment 8. NMFS should require both the use of a bird streamer line
and the nightsetting of gear.
Response. As explained in the response to comment 2, seabird
avoidance techniques appropriate for one fishery may not be appropriate
for another. Management agencies must assess the needs in a particular
fishery and employ measures that are practicable for that fishery. The
final rule requires vessels to use more than one avoidance measure.
Regulations at Sec. 679.24(e)(2)(i) and (ii) require seabird avoidance
measures of all hook-and-line vessels fishing for Pacific halibut.
Section 679.24(e)(2)(iii) requires that every reasonable effort be made
to release alive seabirds brought on board. In addition, hook-and-line
vessels that are greater than or equal to 26 ft (7.9 m) LOA must employ
at least one of four additional seabird avoidance measures set forth at
Sec. 679.24(e)(3)(i) through (e)(3)(iv). A vessel may use more than one
of these measures at the same time.
Moreover, setting at night may pose safety concerns for smaller
vessels. Requiring mandatory night-setting may be neither practicable
nor an effective seabird deterrent in the Pacific halibut fishery given
that (1) night-setting is not an available avoidance measure during
June and July in northern latitudes, (2) the importance of squid in the
diet of the short-tailed albatross suggests that short-tailed
albatrosses may have nocturnal feeding habits (Sherburne, 1993), and
(3) there are safety concerns are related to night-setting by smaller
vessels.
New Zealand is one of the leading nations in efforts to reduce
seabird bycatch in hook-and-line fisheries. In 1992, licenses issued to
Japanese hook-and-line vessels to fish in New Zealand waters required
either that streamer lines be used or that gear be deployed at night
(Murray et al., 1993). Concerns were raised that recommending that
night-setting be mandatory in certain areas would be unwise, given the
nocturnal feeding habits of certain seabird species. Beginning in 1993,
the use of streamer lines became mandatory for foreign and domestic
hook-and-line fishing vessels, and night-setting was removed as a
license requirement (Duckworth, 1995). Australia, another leading
nation in seabird bycatch reduction efforts, requires the use of
streamer lines but does not require night-setting. All other seabird
avoidance methods are voluntary.
Seabird avoidance requirements must fit the particular needs of the
situation. Until further information is available on the effectiveness
of seabird avoidance devices in the Alaskan hook-and-line fisheries,
NMFS believes that providing the industry with some flexibility in
choosing among possible options to reduce seabird bycatch is
appropriate.
Comment 9. The proposed measure at Sec. 679.24(e)(3)(ii) should not
specify towing a board or stick as a seabird avoidance measure.
Response. NMFS believes that testimony from Alaskan fishermen on
the effectiveness of towing a buoy, board, stick, or other device in
reducing seabird bycatch warrants the inclusion of this option in
regulations. Any device that moves unpredictably across the water near
the gear should help prevent birds from taking baited hooks.
[[Page 11166]]
Depending on conditions, towing a buoy, board, stick, or other device
may not be totally effective on its own, but combinations of solutions
might significantly reduce seabird bycatch. As explained in the
response to Comment 2, when tests have occurred and information is
available as to the effectiveness and practicability of specific
seabird avoidance measures in the Alaska hook-and-line fisheries, NMFS
may revise the regulations to reflect such findings.
Comment 10. A weakness of the proposed rule is its lack of
guidelines for constructing an effective bird streamer line. The final
rule should require the use of effectively designed and built streamer
lines and set out guidelines for their construction, performance, and
maintenance.
Response. NMFS agrees that guidelines for constructing an effective
bird streamer line should be provided. They are included in the
preamble of this final rule.
Comment 11. NMFS should be applauded for promulgating these
regulations in an attempt to protect seabird populations in the North
Pacific. However, the proposed rule should be strengthened in order to
effectively reduce bycatch of the short-tailed albatross and other
seabirds.
Response. As explained in the response to comment 2, when tests
have occurred and information is available as to the effectiveness and
practicability of specific seabird avoidance measures in the Alaska
hook-and-line fisheries, NMFS may revise the regulations to reflect
such findings.
References
Barnes, K.N., P.G. Ryan, and C. Boix-Hinzen. 1997. The Impact of
the Hake Merluccius spp. Longline Fishery off South Africa on
Procellariiform Seabirds. Biological Conservation 82: 227-234.
Cherel, Y., H. Weimerskirch, and G. Duhamel. 1996. Interactions
between Longline Vessels and Seabirds in Kerguelen Waters and a Method
to Reduce Seabird Mortality. Biological Conservation 75: 63-70.
CCAMLR. 1996. Fish the Sea not the Sky: How to Avoid Bycatch of
Seabirds When Fishing With Bottom Longlines. Commission for the
Conservation of Antarctic Marine Living Resources, Hobart, Tasmania,
Australia.
Duckworth, Kim. 1995. Analysis of Factors Which Influence Seabird
Bycatch in the Japanese Southern Bluefin Tuna Longline Fishery in New
Zealand Waters, 1989-93. New Zealand Fisheries Assessment Research
Document 95/26, Ministry of Fisheries, Wellington.
IPHC. 1997. Draft FAO Longline Background Paper: Pacific Halibut.
Klaer, N. and T. Polacheck. 1995. Japanese Longline Seabird Bycatch
in the Australian Fishing Zone April 1991-March 1994. Catch and Catch
Rates by Area and Season and an Evaluation of the Effectiveness of
Mitigation Measures. CSIRO, Division of Fisheries, Australia.
Murray, T.E., J.A. Bartle, S.R. Kalish, and P.R. Taylor. 1993.
Incidental Capture of Seabirds by Japanese Southern Bluefin Tuna
Longline Vessels in New Zealand Waters, 1988-1992. Bird Conservation
International 3: 181-210.
Sherburne, J. 1993. Status Report on the Short-tailed Albatross,
Diomedea albatrus. Alaska Natural Heritage Program, Environment and
Natural Resources Institute, University of Alaska Anchorage. Anchorage.
USFWS. 1998. Conclusion of Informal Consultation With NMFS on
Proposed Rule Requiring Use of Seabird Deterrent Devices for Pacific
Halibut Hook-and-line Fisheries with Regulatory Exemptions for Vessels
Less Than 26 ft in the Pacific Halibut and BSAI and GOA Groundfish
Hook-and-line Fisheries. USFWS communication to NMFS, January 12 and
February 17.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
At the proposed rule stage, NMFS prepared an IRFA on this action.
No comment were received on the IRFA. NMFS has prepared an FRFA, as
part of the RIR, that describes the impact this rule would have on
small entities. In 1996, 2,124 vessels landed halibut from U.S.
Convention waters off Alaska. Of these vessels, 1,935 were less than 60
ft (18.3 m) LOA and NMFS assumes that most of these 1,935 vessels would
be considered small entities. Based on the best available information,
NMFS cannot predict how many small entities would be affected.
Depending on what types of avoidance measures each vessel employs, any
number of vessels ranging from zero to 1.935 could experience a
reduction of greater than 5 percent in their annual gross annual
incomes. Therefore, it is possible that this rule could have a
significant negative economic impact on a substantial number of small
entities.
A number of alternatives to the rule which would have lessened the
economic impact on small entities were considered and rejected. The no-
action alternative would not require any vessel, including small
entities, to implement seabird avoidance measures in the Pacific
halibut fishery, but this alternative would not have accomplished the
Council's objective of limiting bycatch. In addition, very significant
impacts on small entities could occur if closures were imposed due to
the incidental take limit of short-tailed albatross being exceeded. The
likelihood of this happening would be greater under the no-action
alternative. Alternatives that addressed modifying reporting
requirements for small entities were not considered by the Council, or
in this analysis, because such alternatives would not reduce seabird
interactions and would not mitigate the impacts of this action on small
entities.
Several aspects of this rule will minimize the economic effects on
small entities. The proposed seabird avoidance measures are based on
performance standards rather than on design standards, therefore
alleviating a potential economic burden to small entities. The
exemption for vessels less than 26 ft (7.9 m) LOA (all small entities)
in this rule would also alleviate a potential economic burden to small
entities. In 1996, of the 2,124 vessels that made landings in the
halibut and sablefish fisheries, 328 were less than 26 ft (7.9 m) LOA
(15 percent of total number of vessels making halibut and sablefish
landings). In 1996, of the 1,847 vessels that were issued Federal
fisheries permits for the BSAI and GOA groundfish fisheries, 47 were
less than 26 ft (7.9 m) LOA (2.5 percent of 1996 Federal fisheries
permittees). To provide maximum flexibility to participants in the
fishery, a number of alternative measures to avoid seabird interaction
are included in the rule as options from which a vessel operator may
choose in deciding how to comply with this rule. Consequently, there
are no additional alternatives that would mitigate the economic impact
while achieving this action's purpose.
The economic impacts of this rule would vary depending on which
seabird avoidance measures a fisherman employs. The cost of buoys and
bird streamer lines as seabird bycatch avoidance devices range from $50
to $250 per vessel. A lining tube is a technology used in fisheries of
other nations to deploy baited hooks underwater to avoid birds and is
offered as a possible option. NMFS anticipates that the operators of
smaller vessels (less than 60 ft (18.3 m)) would choose an avoidance
measure other than a lining tube, which could cost as much as $35,000
per vessel. There were 189 hook-and-line vessels equal to or greater
[[Page 11167]]
than 60 ft (18.3 m) that made halibut landings in 1996.
Although this action could result in economic impacts on small
entities, the no-action alternative could result in even more severe
economic impacts. Failure to establish seabird avoidance measures under
this action could increase the likelihood of exceeding the incidental
take limit to be specified for the short-tailed albatross. In that
event, additional measures to minimize the take of short-tailed
albatross could be implemented, ranging from those in this rule to more
stringent measures, including closures. The economic impacts to small
entities resulting from such measures would depend on a variety of
factors, although very significant negative impacts could be expected
if the halibut fishery were closed due to takes of short-tailed
albatross in excess of the incidental take authorized under the section
7 consultation with the USFWS. A copy of the EA/RIR/FRFA is available
from NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 2, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.24, paragraphs (e)(2)(iv) introductory text, and
(e)(2)(iv)(A) through (e)(2)(iv)(D) are redesignated as paragraphs
(e)(3) introductory text, and (e)(3)(i) through (e)(3)(iv),
respectively, and paragraphs (e)(1), (e)(2)(ii), and newly designated
paragraph (e)(3) introductory text are revised to read as follows:
Sec. 679.24 Gear limitations.
* * * * *
(e) Seabird avoidance gear and methods for hook-and-line vessels
fishing for groundfish--(1) Applicability. The operator of a vessel
that is required to obtain a Federal fisheries permit under
Sec. 679.4(b)(1) must comply with the seabird avoidance measures in
paragraphs (e)(2) and (e)(3) of this section while fishing for
groundfish with hook-and-line gear in the BSAI, in the GOA, or in
waters of the State of Alaska that are shoreward of the BSAI and the
GOA.
(2) Requirements. * * *
(ii) If offal is discharged while gear is being set or hauled, it
must be discharged in a manner that distracts seabirds from baited
hooks, to the extent practicable. The discharge site on board a vessel
must be either aft of the hauling station or on the opposite side of
the vessel from the hauling station.
* * * * *
(3) For a vessel greater than or equal to 26 ft (7.9 m) LOA, the
operator of that vessel described in paragraph (e)(1) of this section
must employ one or more of the following seabird avoidance measures:
* * * * *
3. In Sec. 679.42, paragraph (b) is revised to read as follows:
Sec. 679.42 Limitations on use of QS and IFQ.
* * * * *
(b) Gear--(1) IFQ Fisheries. Halibut IFQ must be used only to
harvest halibut with fishing gear authorized in Sec. 679.2. Sablefish
fixed gear IFQ must not be used to harvest sablefish with trawl gear in
any IFQ regulatory area, or with pot gear in any IFQ regulatory area of
the GOA.
(2) Seabird avoidance gear and methods. The operator of a vessel
using gear authorized at Sec. 679.2 while fishing for IFQ halibut or
hook-and-line gear while fishing for IFQ sablefish must comply with
requirements for seabird avoidance gear and methods set forth at
Sec. 679.24(e).
[FR Doc. 98-5834 Filed 3-5-98; 8:45 am]
BILLING CODE 3510-22-F
