[Federal Register Volume 62, Number 43 (Wednesday, March 5, 1997)]
[Proposed Rules]
[Pages 10016-10020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5438]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 970226037-7037-01; I.D. 022197F]
RIN 0648-AJ39


Fisheries of the Exclusive Economic Zone Off Alaska; Management 
Measures to Reduce Seabird Bycatch in the Hook-and-Line Groundfish 
Fisheries

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 proposes regulations to require operators of hook-and-
line vessels fishing for groundfish in the Bering Sea and Aleutian 
Islands management area (BSAI) and the Gulf of Alaska (GOA) and 
federally-permitted hook-and-line vessels fishing for groundfish in 
Alaska waters adjacent to the BSAI and to the GOA, to conduct

[[Page 10017]]

fishing operations in a specified manner, and to employ specified bird 
avoidance techniques to reduce seabird bycatch and incidental seabird 
mortality. This measure is necessary to mitigate hook-and-line fishery 
interactions with the short-tailed albatross, an endangered species 
protected under the Endangered Species Act (ESA), and other seabird 
species. This measure is intended to accomplish the objectives of the 
ESA and of 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 (Groundfish FMPs) with respect 
to the management of the GOA groundfish fishery and the BSAI groundfish 
fishery and the marine environment.

DATES: Comments must be received by March 20, 1997.

ADDRESSES: Comments should be sent to Ronald J. Berg, Chief, Fisheries 
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 
99802, Attn: Lori J. Gravel, or delivered to the Federal Building, 709 
West 9th Street, Juneau, AK. Copies of the Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) prepared for the amendment may be obtained from the North 
Pacific Fishery Management Council, Suite 306, 605 West 4th Avenue, 
Anchorage, AK 99501-2252; telephone: 907-271-2809.

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 (EEZ) are managed by NMFS under 
the Groundfish 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. 773 et seq., 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.

Background

    Recent takes of the endangered short-tailed albatross (Diomedea 
albatrus) (two in 1995 and one in 1996) in hook-and-line groundfish 
fisheries in the BSAI and the GOA highlight a seabird bycatch problem. 
A biological opinion issued in an ESA section 7 consultation on the GOA 
and BSAI groundfish fisheries includes an incidental take statement for 
the take of two short-tailed albatrosses annually in the fisheries. If 
the annual take exceeds two, NMFS immediately must reinitiate section 7 
consultation and review with the U.S. Fish & Wildlife Service (USFWS) 
the need for possible modification of the reasonable and prudent 
measures established to minimize take of the short-tailed albatross.
    In response to these recent takes, several industry groups 
representing hook-and-line vessels in the GOA and the BSAI petitioned 
the Council and NMFS to impose regulatory measures intended to reduce 
the incidental mortality of seabirds in their fisheries. The presence 
of ``free'' food in the form of offal and bait attract many birds to 
fishing operations. In the process of feeding, birds sometimes come 
into contact with fishing gear and are accidentally killed. For 
example, most birds taken during hook-and-line operations are attracted 
to the baited hooks when the gear is being set. These birds become 
hooked at the surface and are then dragged underwater where they drown. 
The proposed measures would reduce the incidental mortality of short-
tailed albatrosses and other seabird species by (1) minimizing the 
seabirds' attraction to fishing vessels and (2) preventing seabirds 
from attempting to seize baited hooks.
    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 must use certain seabird bycatch avoidance devices 
intended to reduce the incidental mortality of the short-tailed 
albatross and other seabird species. At its April 1997 meeting, the 
Council is scheduled to take final action to expand these measures to 
the Pacific halibut fishery in convention waters off Alaska. Should the 
Council take this action, rulemaking to require seabird avoidance 
measures would be initiated separately for the halibut fishery.
    At the February 1997 Council meeting, NMFS informed the Council of 
revisions in the draft proposed rulemaking made because of concerns 
regarding the enforceability of some of the seabird avoidance measures. 
The Council reiterated its December 1996 recommendations that the 
seabird avoidance measures be required in regulation.

Seabird Bycatch in Alaskan Groundfish Fisheries

    Over 80 species of seabirds, including the short-tailed albatross, 
occur over waters off Alaska and could potentially be affected by 
interactions with the GOA and BSAI groundfish fisheries. Fulmars, 
gulls, and albatrosses account for the vast majority of seabird bycatch 
in both the GOA and the BSAI. NMFS, USFWS, and the National Biological 
Survey are cooperating to obtain accurate information on the mortality 
of seabirds related to hook-and-line, trawl, and pot vessels fishing 
groundfish in the EEZ of the GOA and BSAI. This cooperative project 
will also address questions about the effects of various levels of take 
on the world-wide population of short-tailed albatrosses, currently 
estimated at 800 birds. Whereas the USFWS provided an opinion in 1989 
that short-tailed albatrosses could be adversely affected by commercial 
fishing operations in Alaska, this effect on the world population is 
unknown.
    The EA/RIR/IRFA prepared for this action contains more information 
on Alaskan seabirds and a historical background of the seabird bycatch 
issue (see ADDRESSES).

Seabird Bycatch Avoidance Gear and Methods

    The proposed measures are intended to reduce the incidental 
mortality of seabirds by minimizing their attraction to fishing vessels 
and by preventing the seabirds from attempting to seize baited hooks. 
The proposed measures would apply to vessels fishing for groundfish 
with hook-and-line gear in the GOA and the BSAI and federally-permitted 
vessels fishing groundfish with hook-and-line gear in waters of the 
State of Alaska that are adjacent to the GOA and the BSAI and that 
retain more round-weight equivalent of groundfish than round-weight 
equivalent of halibut.
    1. All applicable hook-and-line fishing operations would be 
conducted in the following manner:
    a. Use hooks that, when baited, sink as soon as they are put in the 
water. This could be accomplished by the use of weighted groundlines 
and/or thawed bait.
    b. Avoid dumping of offal to the extent practicable while gear is 
being set or hauled. If discharge of offal is unavoidable, the 
discharge must take place aft of the hauling station or on the opposite 
side of the vessel to that where gear is set or hauled.
    c. Make every reasonable effort to ensure that birds brought on 
board alive are released alive and that, wherever possible, hooks are 
removed without jeopardizing the life of the bird.
    2. All applicable hook-and-line fishing operations would be 
required to employ one or more of the following seabird avoidance 
measures:
    a. Deploy gear only during the hours specified at 
Sec. 679.24(e)(2)(iv)(D) of this

[[Page 10018]]

proposed rule, 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.
    The Council and NMFS intend to implement these proposed regulations 
for the groundfish fisheries first and to follow at a future time with 
the same or similar regulations for the Pacific halibut fishery. To 
avoid having the proposed groundfish regulations applicable to halibut 
fishermen that retain bycatch amounts of groundfish, the proposed 
regulations would apply only to those hook-and-line fishermen that 
retain more round-weight equivalent of groundfish than round-weight 
equivalent of halibut.
    The Council and NMFS intend to reduce the fisheries-related bycatch 
and incidental mortality of seabirds that occur over waters off Alaska. 
To maximize the extent to which these proposed regulations would apply, 
an operator of a hook-and-line vessel that has been issued a Federal 
permit to fish for groundfish in the BSAI and GOA would be required to 
comply, even while fishing for groundfish in State of Alaska waters.
    Although the Council's recommendation at its December 1996 meeting 
included a provision whereby fishermen could substitute other 
experimental seabird avoidance devices with the approval of the NMFS 
Administrator, Alaska Region, NMFS believes that such a waiver 
provision is not administratively practicable. NMFS strongly encourages 
the industry's efforts to find other effective seabird avoidance 
devices. Additional effective measures can be implemented through the 
regulatory amendment process in the future.
    The proposed measures are modeled after NMFS' regulations 
implementing conservation and management measures adopted by the 
Commission for the Conservation of Antarctic Marine Living Resources 
(CCAMLR) (61 FR 8483; March 5, 1996) and measures currently in use by 
some hook-and-line fishermen in Alaskan fisheries. Some of the CCAMLR 
measures were initially developed for use in the Australian and New 
Zealand longline fisheries and have proven very effective in reducing 
bait loss and incidental seabird mortality. In addition to the measures 
benefitting seabirds, the reduction of bait loss and subsequent 
increased fish harvest provides financial benefits to fishermen. In the 
Australian southern bluefin tuna fishery, annual economic losses 
attributed to bait loss and reduced harvest were estimated to exceed $7 
million in Australian dollars (approximately $5 million United States).
    The CCAMLR regulations indicate that longline gear shall be set 
between the times of nautical twilight. Nautical twilight is defined 
practically as those times when it is too dark to see the horizon 
clearly and when normal outdoor activities cannot be conducted without 
the use of artificial light. The intent of the proposed regulation is 
to limit hook-and-line gear deployment to those hours (nighttime hours/
hours of darkness) between nautical twilight, if that is the option 
being exercised by the fisherman. The proposed regulation provides a 
table specifying the allowed hours of hook-and-line gear deployment. 
The Nautical Almanac, a U.S. Naval Observatory publication, was used to 
determine these times. This option is not available during the months 
of June and July, due to the lack of nautical twilight at northernmost 
latitudes.
    Besides the measures proposed here, other methods have been used to 
reduce seabird bycatch. Some of them are: Loud noises to deter birds 
from the stern of the fishing vessel during gear deployment, automatic 
bait-caster to deploy bait away from the turbulent water caused by 
``prop wash'' and causing the bait to remain afloat, deflating swim 
bladders or the squid mantle of bait species (causing bait to sink 
faster), and reducing the time taken to haul back gear. NMFS 
specifically requests comments on: (a) These and other effective 
methods for reducing seabird bycatch that are not included in the 
proposed measures, (b) any safety concerns of using seabird bycatch 
avoidance devices during extreme weather conditions, and (c) offal 
discharge during setting or hauling of hook-and-line gear and how 
either or both of these operations impacts seabird bycatch.

Suggestions for Streamer Line Construction

    The streamer line is a seabird avoidance device that currently is 
required in Australian and New Zealand longline fisheries and has been 
credited with effectively reducing seabird bycatch. Scientific studies 
in New Zealand indicate that the quality of a streamer line, both in 
construction and materials used, played a major role in the streamer 
line's effectiveness in preventing seabirds from seizing baited hooks. 
In fact, the difference in bycatch rates between sets that used no 
streamer line and sets that used a poorly-constructed streamer line was 
not significant. Sets that used a high-quality streamer line were 
significantly less likely to catch seabirds than sets that used a poor-
quality streamer line or no streamer line at all. The purpose of the 
streamer line is to scare birds away from the stern of the vessel when 
gear is deployed and baited hooks are present near or on the water's 
surface. A well-constructed streamer line thrashes about unpredictably; 
thus, the seabirds do not become habituated to its movement. The key 
characteristics of an effective streamer line are:
     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;
     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;
     The height of the streamer line at the point of attachment 
is 3 to 4 meters (m) above sea level;
     The streamer line is constructed of material that is 
between 2 and 5 millimeters (mm) in diameter;
     Length of streamer line is a minimum of 150 to 175 m;
     Number of streamers attached to a streamer line is 5 to 10 
pairs;
     Streamers made of a heavy, flexible material that will 
allow the streamers to move freely and flop unpredictably (for example, 
streamer cord inserted inside a red polyurethane tubing);
     Streamer pairs attached to the bird streamer line using a 
3-way swivel; and
     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, as proposed in this rulemaking.
    The Magnuson-Stevens Act requires that the public be provided with 
a comment period of 15 to 60 days to respond to proposed regulations. 
Beginning January 1, the hook-and-line fisheries open in the BSAI and 
GOA. Short-tailed albatross sightings in the BSAI and/or GOA have 
occurred in all months from April to November. Considering the urgency 
of completing rulemaking regarding these proposed measures, NMFS has 
provided for a 15-day public comment period. The

[[Page 10019]]

proposed measures were initially requested by hook-and-line industry 
representatives as emergency measures because of concerns about the 
potential economic impacts if the annual take limit for the short-
tailed albatross is exceeded and fishing ceases pending reinitiation 
and conclusion of consultation pursuant to section 7 of the ESA.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared an IRFA as part of the RIR, which describes the 
impact this proposed rule would have on small entities, if adopted. 
Based on the analysis, it was determined that this proposed rule could 
have a significant economic impact on a substantial number of small 
entities. In 1995, 1,217 and 100 hook-and-line catcher vessels 
harvested groundfish from the GOA and BSAI, respectively. Catcher/
processor vessels numbered 35 and 46 in those respective areas. Very 
significant impacts on small entities could occur if the groundfish 
fisheries are altered or perhaps closed due to the annual take of the 
endangered short-tailed albatross being exceeded. The likelihood of 
this happening is great under the status quo alternative because of 
recent takes (e.g., two in 1995). The economic impacts of such 
alterations or closures would depend on the development and 
implementation of the reasonable and prudent measures established to 
minimize take of the short-tailed albatross.
    Several measures available under the preferred alternative would 
minimize the economic impacts on small entities. The economic impact on 
small entities would depend upon the particular measures chosen. 
Procedural or operational changes may be necessary in fishing 
operations. A vessel operator would have a choice of several other 
measures. The cost of buoys and bird streamer lines as seabird bycatch 
avoidance devices range from $50-$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 are 154 and 53 
hook-and-line catcher vessels and 31 and 45 catcher/processor vessels 
equal to or greater than 60 ft (18.3 m) in the GOA and BSAI, 
respectively.
    If the annual take of short-tailed albatross in the hook-and-line 
fisheries operating under these proposed measures would exceed the take 
limit established under the ESA section 7 consultation, the actual 
economic impacts resulting from the modification of the reasonable and 
prudent measures established to minimize take of the short-tailed 
albatross would depend upon the development and implementation of 
revised measures. The revised measures could range from those proposed 
by this rule, additional or modified measures, to closures. The 
economic impact on fishing operations would depend upon the length of 
time of the closed period and the additional cost of revised measures. 
Significant impacts on small entities could occur if the fisheries 
closed due to the annual take of the endangered short-tailed albatross 
being exceeded. The likelihood of this happening is less under the 
proposed rule than under the status quo alternative. The economic 
impacts of this proposed rule on small entities could result in a 
reduction in annual gross revenues by more than 5 percent and could, 
therefore, potentially have a significant economic impact on a 
substantial number of small entities. A copy of this analysis is 
available from the Council (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements.

    Dated: February 28, 1997.
Nancy Foster,
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 50 CFR part 679 continues to read as 
follows:

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

    2. In Sec. 679.24, paragraph (e) is added 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. (i) Except as provided in 
paragraph (e)(1)(ii) of this section, 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 paragraph (e)(2) 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.
    (ii) The operator of a vessel is not required to comply with the 
seabird avoidance measures in paragraph (e)(2) of this section whenever 
the round-weight equivalent of halibut retained on board exceeds the 
round-weight equivalent of groundfish retained on board.
    (2) The operator of a vessel described in paragraph (e)(1) of this 
section must conduct fishing operations in the following manner:
    (i) Use hooks that when baited, sink as soon as they are put in the 
water.
    (ii) Avoid dumping of offal to the extent practicable while gear is 
being set or hauled. If discharge of offal is unavoidable, the 
discharge must take place aft of the hauling station or on the opposite 
side of the vessel to that where gear is set or hauled.
    (iii) Make every reasonable effort to ensure that birds brought on 
board alive are released alive and that wherever possible, hooks are 
removed without jeopardizing the life of the bird.
    (iv) Employ one or more of the following seabird avoidance 
measures:
    (A) Tow a streamer line or lines during deployment of gear to 
prevent birds from taking hooks;
    (B) 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
    (C) Deploy hooks underwater through a lining tube at a depth 
sufficient to prevent birds from settling on hooks during deployment of 
gear; or
    (D) Deploy gear only during the hours specified below, using only 
the minimum vessel's lights necessary for safety.

[[Page 10020]]



Hours That Hook-and-Line Gear Can Be Deployed for Specified Longitudes According to Paragraph (e)(2)(iv) of This
                                                     Section                                                    
                                          [Hours are Alaska local time]                                         
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                                                                                     Longitude                  
                                                                 -----------------------------------------------
                         Calendar Month                            Shoreward to     151 to 165      166 to 180  
                                                                     150 deg.W         deg.W           deg.W    
----------------------------------------------------------------------------------------------------------------
January.........................................................       1800-0700       1900-0800       2000-0900
February........................................................       1900-0600       2000-0700       2100-0800
March...........................................................       2000-0500       2100-0600       2200-0700
April...........................................................       2100-0400       2200-0500       2300-0600
May.............................................................       2200-0300       2300-0400       2400-0500
June............................................................             \1\             \1\             \1\
July............................................................             \2\             \2\             \2\
August..........................................................       2200-0400       2300-0500       2400-0600
September.......................................................       2000-0500       2100-0600       2200-0700
October.........................................................       1900-0600       2000-0700       2100-0800
November........................................................       1800-0700       1900-0800       2000-0900
December........................................................       1700-0700       1800-0800      1900-0900 
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\1\ This measure cannot be exercised during June.                                                               
\2\ This measure cannot be exercised during July.                                                               

[FR Doc. 97-5438 Filed 3-4-97; 8:45 am]
BILLING CODE 3510-22-P