[Federal Register Volume 61, Number 137 (Tuesday, July 16, 1996)]
[Proposed Rules]
[Pages 37041-37042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17945]


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DEPARTMENT OF COMMERCE
50 CFR Part 679

[Docket No. 960703187-6187-01; I.D. 062096B]
RIN 0648-AI96


Fisheries of the Exclusive Economic Zone off Alaska; Allow 
Longline Pot Gear

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule to allow the use of longline pot 
gear in the directed sablefish fishery in the Bering Sea. Sablefish 
hook-and-line fishermen in the Bering Sea have faced increasing 
depredation of hooked sablefish by killer whales. The use of longline 
pot gear would effectively prevent such depredation. This action is 
necessary to protect Bering Sea sablefish harvests and is intended to 
resolve a conflict between fishermen and a species protected under the 
Marine Mammal Protection Act of 1972 (MMPA).

DATES: Comments must be received by August 15, 1996.

ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries 
Management Division, Alaska Region, NMFS, Room 453, 709 W. 9th Street, 
Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802, Attention: Lori 
J. Gravel.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action 
may be obtained from the North Pacific Fishery Management Council, 605 
West 4th Ave., Suite 306, Anchorage, AK 99510-2252.

FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
management area (BSAI) according to the Fishery Management Plan for the 
Groundfish Fishery in the Bering Sea and Aleutian Islands Area (FMP). 
The FMP was prepared by the North Pacific Fishery Management Council 
(Council) and approved by NMFS under the authority of the Magnuson 
Fishery Conservation and Management Act (Magnuson Act). This FMP, 
implemented by regulations at 50 CFR parts 600, and 679, provides for 
changes to gear restrictions by regulatory amendment without amendment 
to the FMP. The regulations pertaining to this action, at Sec. 679.24, 
specify gear types that may legally be employed to harvest sablefish in 
the Bering Sea. Killer whales (Orcinus orca) are protected under the 
MMPA, which prohibits harassment of marine mammals and authorizes the 
Secretary of Commerce to consult with and assist regional fishery 
management councils to reduce takings of marine mammals incidental to 
commercial fishing operations.
    In September 1995, commercial fishing industry representatives 
reported to the Council that the annual Bering Sea sablefish quota had 
been underharvested due in part to interactions with killer whales. 
While fishermen retrieve their hook-and-line gear when fishing for 
sablefish, killer whales frequently pick sablefish off the hooks. 
Sablefish consumed by killer whales in this manner represent 
undocumented fishing mortality. Even though the sablefish quota may be 
underharvested by fishermen, overall fishing mortality could actually 
be higher than the specified quota, resulting in overharvests. Although 
NMFS is not able to quantify the amount of killer whale-caused fishing 
mortality, such mortality is a conservation concern to the extent that 
the amount of overharvests introduces

[[Page 37042]]

uncertainty in management of the fishery.
    Attempts to deter the whales by various non-lethal means have 
proven unsuccessful. Research referenced in the EA/RIR/IRFA for this 
action concluded that the only viable method for reducing killer whale 
interactions with this fishery is to harvest with longline pot gear 
instead of hook-and-line gear, and thus deny killer whales the 
opportunity to take fish being hauled to the surface.
    Currently, regulations at Sec. 679.24(b)(1)(iii) prohibit longline 
pot gear in the Bering Sea to prevent the pre-emption of fishing 
grounds by one gear-type. Gear conflicts and the pre-emption of fishing 
grounds by a single gear-type arise from the use of diverse gear in the 
same area over the same period of time. The nature of longline pot gear 
and strategies used in fishing longline pots deter fishermen from 
deploying hook-and-line and trawl gear on fishing grounds where 
longline pot gear is set. This effectively pre-empts common fishing 
grounds. For this reason, the Council chose in 1991 to prohibit the use 
of longline pot gear in the Bering Sea groundfish fisheries. 
Regulations prohibiting longline pot gear were promulgated on August 
21, 1992 (57 FR 37906).
    In 1995, the Individual Fishing Quota (IFQ) Program for fixed gear 
Pacific halibut and sablefish fisheries extended sablefish seasons in 
Federal waters off Alaska to a period of 8 months. By allowing the 
fleet to spread its operations over time, the IFQ Program greatly 
reduced the possibility of congestion and pre-emption of common fishing 
grounds. The reintroduction of longline pot gear into the Bering Sea 
fisheries would pose less of a grounds pre-emption threat now compared 
to 1992 when longline pots were prohibited. Authorizing the use of 
longline pot gear, with limitations, in the Bering Sea directed 
sablefish fishery would allow fishermen to use this gear and reduce 
interactions with killer whales.
    In recommending this action, the Council expressed concern that, 
despite the decreased likelihood of grounds pre-emption, fishermen 
using traditional hook-and-line gear in relatively small boats may be 
pre-empted from grounds by fishermen in larger boats using longline pot 
gear. Therefore, this action would establish a Bering Sea closure to 
longline pot gear from June 1 through June 30. Lifting the prohibition 
on longline pot gear for sablefish fisheries would reduce interactions 
with killer whales, while the month-long closure would continue to 
provide a period for conducting other fisheries without the potential 
for gear conflicts with longline pot gear.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    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 proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The rule would reduce a restriction by allowing 
fishermen to use longline pot gear to harvest sablefish. At the present 
time, fishermen may use only hook-and-line gear, a gear subject to 
depredation of harvests by killer whales. While a gear switch would 
have direct costs, a switch would be voluntary and presumably would 
only be made if the fisherman judge that the costs associated with 
changing gear would be offset by the greater landed weight of sablefish 
possible in the absence of killer whale depredation.
    The Director, Alaska Region, NMFS, has determined that fishing 
activities conducted under this rule would have no adverse impacts on 
marine mammals. The express purpose of this rule is to reduce the 
interactions with commercial fisheries in the Bering Sea and resident 
killer whale populations.

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements

    Dated: July 9, 1996.
Nancy Foster, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq.

    2. In Sec. 679.24, paragraphs (b)(1)(iii) and (c)(4) are revised to 
read as follows:


Sec. 679.24  Gear limitations.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Longline pot gear. Any person using longline pot gear must 
treat any catch of groundfish as a prohibited species, except:
    (A) In the Aleutian Islands subarea.
    (B) While directed fishing for sablefish in the Bering Sea, except 
as provided in paragraph (c)(4)(ii) of this section.
* * * * *
    (c) * * *
    (4) BSAI. (i) Operators of vessels using gear types other than 
hook-and-line, pot, or trawl gear in the BSAI must treat sablefish as a 
prohibited species as provided by Sec. 679.21(b).
    (ii) Longline pot gear is prohibited in directed fishing for 
sablefish from 0001 hrs, A.l.t., on June 1 until 1200 hrs, A.l.t., on 
June 30.
* * * * *
[FR Doc. 96-17945 Filed 7-15-96; 8:45 am]
BILLING CODE 3510-22-F