[Federal Register Volume 62, Number 31 (Friday, February 14, 1997)]
[Proposed Rules]
[Pages 6931-6934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3808]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7015-01; 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: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes a plan to reduce the bycatch and mortality of 
several marine mammal stocks that occur incidental to fishing for 
swordfish and thresher shark with drift gillnet gear offshore 
California and Oregon. The draft plan was submitted by the Pacific 
Offshore Cetacean Take Reduction Team (PCTRT) pursuant to the Marine 
Mammal Protection Act (MMPA). NMFS seeks comment on the draft Pacific 
Offshore Cetacean Take Reduction Plan (PCTRP), a NMFS proposed change 
to the draft plan, and proposed regulations to implement the plan.

DATES: Comments on the draft plan, NMFS' proposed change to the plan, 
and the proposed rule to implement the plan must be received by March 
31, 1997.

ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226. Copies of the draft PCTRP and 
Environmental Assessment (EA) are available upon request from Irma 
Lagomarsino, Southwest Region, NMFS, 501 W. Ocean Blvd., Suite 4200, 
Long Beach, CA 90802-4213, or from Victoria Cornish, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3226.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, 310-980-4016 
or Victoria Cornish, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION: The California/Oregon drift gillnet (CA/OR 
DGN) fishery for 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.). The CA/OR DGN fishery is a pelagic 
fishery with the majority of the fishing effort occurring within 200 
miles (320 kilometers) offshore of California and Oregon. Between May 1 
and August 14, drift gillnets may not be used to take swordfish or 
thresher shark in ocean waters within 75 miles (120 kilometers) of the 
California coastline. From August 15 to January 31, swordfish may be 
taken within 75 miles (120 kilometers) of the California mainland, 
although additional area restrictions also apply within this area.
    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) which is declining 
and is likely to be listed under the Endangered Species Act (ESA) in 
the foreseeable future; or (3) which is listed as a threatened or 
endangered species under the ESA. The incidental bycatch of strategic 
stocks in the CA/OR DGN fishery exceeds the PBR levels established for 
these stocks (Barlow et al., 1995).
    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. Category I or II fisheries are fisheries that have frequent 
or occasional incidental mortality and serious injury of marine 
mammals, respectively. The immediate goal of a take reduction plan is 
to reduce, within 6 months of its implementation, the mortality and 
serious injury of strategic stocks incidentally taken in the course of 
commercial fishing operations to below 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 PCTRT on 
February 15, 1996 (61 FR 5385) to prepare a draft take reduction plan. 
The PCTRT included 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 
incidental mortality and serious injury of strategic marine mammal 
stocks in 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 (PCTRP, 1996). The PCTRP includes: (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, enhancing 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 four primary strategies be implemented 
to reduce bycatch of strategic marine mammal stocks in the CA/OR DGN 
fishery. The PCTRT recommended that three of these strategies be 
administered on a mandatory basis (strategies #1, #2, and #4) and that 
one be administered on a voluntary basis (strategy #3). This action 
proposes regulations to implement three of these primary strategies. 
These include the establishment of a depth of fishing requirement 
(strategy #1), the use of acoustic deterrent devices (pingers) 
(strategy #2), and mandatory skipper workshops (strategy #4). The PCTRT 
recommended that one other primary strategy be implemented by NMFS, yet 
not through Federal regulation. This would be for NMFS to encourage 
CDFG not to reissue lapsed permits, and to encourage the Oregon 
Department of Fish and Wildlife (ODFW) to continue issuing the same 
number of permits (strategy #3).
    The proposed requirements would govern fishing by all drift gillnet 
vessels that operate out of California or Oregon.

[[Page 6932]]

Primary Strategies

Depth of Fishing Requirement (Strategy #1)

    The PCTRT recommended that NMFS establish a fleetwide 16 fathom (36 
feet; 10.9 meters) minimum extender line length requirement. Extender 
lines attach buoys (floats) to the drift gillnet's floatline and 
determine the depth of the water column at which the net is fished. 
Lowering nets in the water column has significantly reduced the 
incidental bycatch of cetaceans in several other drift gillnet 
fisheries (see PCTRP, 1996). In addition, analysis of NMFS' observer 
program data for the CA/OR DGN fishery from 1990-95 indicates that a 
significantly greater number of cetaceans are caught during sets that 
use extenders that are less than 6 fathoms (10.9 meters) deep. 
Furthermore, the majority of the cetaceans incidentally taken were 
observed entangled in the upper third of the net. Thus, requiring the 
CA/OR DGN fishery to use extenders of 6 fathoms (10.9 meters) in length 
or greater should reduce overall cetacean, and strategic stock, 
mortality and serious injury in the fishery. This proposed rule would 
require vessel operators to use an extender with a length of at least 6 
fathoms (10.9 meters).

Skipper Education Workshops (Strategy #2)

     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. Workshops would provide drift gillnet skippers 
with information relevant to how the PCTRP was developed and how to 
avoid marine mammal entanglement, and the workshops would solicit 
feedback from fishers on how to reduce marine mammal interactions. 
Workshops would be conducted at several locations in California that 
are accessible to the majority of drift gillnet fishers (e.g., Crescent 
City, Moss Landing, Morro Bay, Los Angeles, San Diego). Outreach 
materials that explain take reduction plan development, plan 
components, plan implementation, and species identification information 
would be provided to workshop participants. This proposed rule would 
require all CA/OR DGN vessel operators to attend one Skipper Education 
Workshop before initiating fishing in the 1997/98 fishing season (May 1 
to December 31). CA/OR DGN vessel operators would be required to attend 
Skipper Education Workshops at annual intervals thereafter, unless that 
requirement is waived by NMFS. NMFS would provide sufficient advance 
notice to vessel operators by mail prior to convening workshops.

Pinger Experiment and Requirement (Strategy #3)

    The PCTRT recommended that NMFS and the CA/OR DGN fishery initiate 
an acoustic deterrent device (pinger) experiment in the fishery during 
the 1996-97 fishing season to evaluate the effectiveness of pingers at 
reducing incidental cetacean and strategic stock bycatch. 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 (1997-98) and continue 
to monitor the effectiveness of pingers at reducing bycatch.
    The use of pingers in other gillnet fisheries has been shown to be 
effective at reducing the incidental bycatch of harbor porpoise (PCTRP, 
1996). Analysis of CA/OR DGN observer program data from 1990-95 
indicates that more cetaceans are entangled in areas of the net further 
away from the vessel, indicating that sound from the vessel may alert 
these animals to use their echolocation and, thus, avoid entanglement 
in the net. Furthermore, a workshop of cetacean and acoustic experts 
recently concluded that a pinger experiment should be conducted in the 
CA/OR DGN fishery to test its effectiveness at reducing cetacean 
entanglement (Reeves et al., 1996). The workshop participants 
recommended that the pingers used in the New England sink gillnet 
fishery ( 10 kHz at 132 dB re 1 Pa at 1 meter) be used 
experimentally in the CA/OR DGN fishery because the sound frequency of 
the pingers was within the hearing sensitivity of most of the cetaceans 
that interact with that fishery.
    NMFS and the CA/OR DGN fishery initiated a pinger experiment in the 
CA/OR DGN fishery in August 1996. The CA/OR DGN fishery pinger 
experiment used pingers with the same sound frequency, level, and pulse 
duration and rate as those used in the New England sink gillnet 
fishery. Preliminary results indicate that observed cetacean 
entanglement rate is almost 4 times greater for non-pinger sets than 
for those sets that used pingers (NMFS, unpublished data). Final 
statistical results from the pinger experiment should be available in 
March 1997.
    Under this proposed rule, NMFS-approved pingers must be used on all 
vessels, during every set, and during the entire fishing season. A 
NMFS-approved pinger is an acoustic deterrent device which, when 
immersed in water, broadcasts a sound frequency range of 10 to 80 kHz 
at 132 dB re 1 micropascal at 1 meter with a pulse duration of 300 
milliseconds and a pulse rate of 4 seconds. However, if better 
information on the hearing sensitivity of cetaceans taken in the CA/OR 
DGN fishery indicates that different pinger specifications would be 
more effective, or if experiments using alternative pingers are more 
effective, NMFS could require that different pingers be used in the 
fishery. NMFS would publish proposed specifications for alternative 
pingers, and provide opportunity for public comment to determine 
whether alternative pingers should be required.
    If the final results from the pinger experiment indicate that these 
devices are ineffective at reducing cetacean bycatch in the CA/OR DGN 
fishery, the use of pingers will not be included in the final rule to 
implement the final PCTRP. NMFS may 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 
included in the final rule.

Encourage CDFG Not to Reissue Lapsed Permits and Encourage ODFW to 
Continue to Issue the Same Number of Permits (Strategy #4)

    The California drift gillnet fishery for thresher shark and 
swordfish is a limited entry fishery, and the OR DGN fishery is a 
developmental fishery. The PCTRT recognized that the CA DGN fishery is 
not restricted from a substantial expansion in fishing effort, because 
nearly a third of the drift gillnet permittees annually satisfy only 
the minimum CDFG requirements to keep their permits valid. The PCTRT 
recommends two approaches for limiting the potential expansion of 
fishing effort by permit holders in California and Oregon. 
Implementation of these approaches would not affect those drift gillnet 
fishers that annually land well beyond the minimum landing requirements 
established by CDFG.
    First, the PCTRT recommended that CDFG continue not to reissue 
drift gillnet permits that have lapsed. In the past, if the minimum 
landing requirements for a drift gillnet permit have not been met by 
the permittee, the permit lapsed and could then be reissued to other 
applicants. However, it is the current practice of CDFG to not reissue 
lapsed permits. The PCTRT also recommended that ODFW continue issuing 
the same number of permits as were issued in 1996. NMFS intends to

[[Page 6933]]

contact CDFG and ODFW to encourage continuation of these practices.
    Second, the PCTRT recommended that a California drift gillnet 
permit buy-back program be instituted to reduce those California drift 
gillnet permittees that annually land only the minimum requirements to 
maintain their permits. Theoretically, any agency or any private sector 
entity could initiate a buy-back program by entering into an agreement 
with a drift gillnet permit holder. Although NMFS does not have funding 
to implement this strategy, 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 is seeking comments on the 
establishment of such a permit buy-back program in conjunction with 
CDFG, other agencies, or with the private sector.

Contingency Measures Involving a Reduction in Fishing Effort

    The PCTRT reviewed several contingency measures involving a 
reduction in fishing effort that may be considered if the 
implementation of the primary strategies fail to achieve the goals of 
the MMPA. The PCTRT recommended that NMFS reconvene the PCTRT prior to 
June 15, 1997, to review the results from the pinger experiment, 
evaluate the efficacy of pingers at achieving the goals of the MMPA, 
and make additional recommendations for the plan, if necessary. The 
PCTRT also recommended that NMFS continue to reconvene the team on an 
annual basis to monitor the implementation of the final take reduction 
plan, until such time that NMFS determines that the objectives of the 
MMPA have been met.
    The contingency measures reviewed by the PCTRT include a 
preliminary list of possible strategies for reducing incidental 
mortality and serious injury that involve changes in fishing effort. 
Once the final PCTRP is adopted by NMFS, the team recommended that if 
the 6-month take reduction goal has not been met when the team 
reconvenes, the PCTRT will recommend methods to reduce fishing effort 
in the upcoming season, if necessary. NMFS intends to reconvene the 
PCTRT prior to June 1997 and on an annual basis until the goals of the 
MMPA have been met.

Other Team Recommendations

    The PCTRP included several other recommendations that do not 
require regulations to implement yet were considered important in 
achieving the long-term goals of the PCTRP. These include: (1) 
Voluntary modifications of net mesh size; (2) enhancing the 
effectiveness of the observer program; (3) research on oceanographic/
environmental variables in relation to cetacean distribution.
    The PCTRP also included recommendations that all vessels in the CA/
OR DGN fishery voluntarily convert to 20-inch (50.8 centimeter) net 
mesh size when replacing old nets or large panels of existing net. The 
mesh conversion was recommended because an analysis of observer data 
showed a significant correlation between size of mesh and cetacean 
entanglement rate. The rate of entanglement was higher for mesh sizes 
greater than 21 inches than that for 20 inches or less. The biological 
reasons for this relationship are unknown. NMFS plans to encourage DGN 
fishers to convert their nets to 20-inch (50.8 centimeters) mesh during 
the Skipper Education Workshops.
    The PCTRT recommended 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). NMFS is in the process of implementing 
these measures within the constraints of available funding.
    The PCTRP recommended that data be collected on oceanographic/
environmental variables that could be used for predicting cetacean 
distribution on a real-time basis and, possibly, reducing marine mammal 
interactions with the CA/OR DGN fishery. NMFS intends to include this 
additional data collection in its research program where possible.
    The PCTRP also identified an additional 13 strategies that might 
reduce bycatch of strategic marine mammal stocks. These strategies were 
either rejected by the PCTRT or held in reserve for future 
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' Proposed Change to the Plan

    NMFS proposes to adopt the draft plan as submitted, except for one 
minor change with respect to strategy #2 (the use of pingers). The 
PCTRT recommended that this strategy be mandatory if a downward trend 
in overall cetacean bycatch could be demonstrated as the result of the 
use of pingers during the 1996/97 fishing season. As discussed above, 
NMFS decided to propose the mandatory use of pingers before final 
results are available. However, if the final results from the pinger 
experiment indicate that these devices are ineffective at reducing 
cetacean bycatch in the CA/OR DGN fishery, the use of pingers will not 
be included in the final rule.
    Comments are requested on all aspects of the draft plan, NMFS's 
proposed change to the plan, and on the proposed regulatory actions to 
implement the plan.

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 proposed rule, if adopted, 
would not have a significant impact on a substantial number of small 
entities as follows:

    The cost of fishing line to implement a minimum extender length 
of 6 fathoms (10.9 meters) is negligible, and swordfish catch rates 
are not significantly different at various depths. Travel costs to 
attend skipper education workshops would be minimized by having 
workshops scheduled at various locations around the state and at 
various times outside of the fishing season. The cost of installing 
pingers on nets would be approximately $1,640 per vessel, based on 
41 pingers required at an average cost of $40 per pinger. The cost 
of pingers could be offset by reductions in marine mammal 
entanglements, and subsequent reduction in costs due to net damage 
or loss. As a result, a regulatory flexibility analysis was not 
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 proposed rule has been determined to not be significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

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.

[[Page 6934]]

Small. 1995. U.S. Pacific Marine Mammal Stock Assessments. NOAA 
Technical Memorandum NMFS, NOAA-TM-NMFS-SWFSC-219. 162 p.
    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.
    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. 75 p.

    Dated: February 10, 1997.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 229 is 
proposed to be 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, sections 229.21 and 229.22 are added to read as 
follows:


Sec. 229.21  Basis.

    Section 118(f)(9) of the Act authorizes the Director, NMFS, to 
impose regulations governing commercial fishing operations where 
necessary to implement a take reduction plan to protect or restore a 
marine mammal stock or species covered by such a plan.


Sec. 229.22  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. Sections 229.22(a) 
through (d) apply to all drift gillnet fishing vessels operating out of 
California or Oregon.
    (b) Extenders. Extenders (buoy lines) of less than 6 fathoms (36 
feet; 10.9 meters) may not be used by drift gillnet vessels operating 
out of California or Oregon.
    (c) Acoustic deterrent devices. (1) For the purposes of this 
subpart, a pinger is defined as an acoustic deterrent device.
    (2) NMFS-approved pingers must be used on all vessels, during every 
set, and during the entire drift gillnet fishing season. A NMFS-
approved pinger is an acoustic deterrent device which, when immersed in 
water, broadcasts a sound frequency range of 10 to 80 kHz at 132 dB re 
1 micropascal at 1 meter with a pulse duration of 300 milliseconds and 
a pulse rate of 4 seconds.
    (3) Pingers must be attached to both the floatline and leadline and 
spaced no more than 300 feet (90.9 meters) apart. Pingers on the 
floatline and leadline must be staggered, such that the horizontal 
distance between a pinger on the floatline and a pinger on the leadline 
is no more than 150 feet (45.5 meters).
    (4) The pingers must be operational and functioning at all times 
during deployment.
    (5) If requested, NMFS may authorize the use of pingers with 
specifications differing from those set forth in section 229.21(c)(2) 
for limited, experimental purposes within a single fishing season.
    (d) Skipper education workshops. After notification from NMFS, 
vessel operators must attend a Pacific Offshore Cetacean skipper 
workshop before commencing fishing each fishing season. For purposes of 
this requirement, the fishing season shall be deemed to begin May 1 and 
end on January 31 of the following year. NMFS may waive the requirement 
to attend these workshops by notice to all vessel operators.
[FR Doc. 97-3808 Filed 2-13-97; 8:45 am]
BILLING CODE 3510-22-F