[Federal Register Volume 62, Number 82 (Tuesday, April 29, 1997)]
[Rules and Regulations]
[Pages 23176-23184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10944]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 970226037-7094-02; 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: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues 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 operators of
hook-and-line vessels that are required to obtain a Federal permit and
are fishing for groundfish in Alaskan waters adjacent to the BSAI and
to the GOA, to conduct 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.
EFFECTIVE DATE: May 29, 1997.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for
the final rule 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
[[Page 23177]]
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.
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 recently amended 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 four birds in 2 years (USFWS,
1997). If the take during 1997 and 1998 exceeds four, 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.
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. The Council reaffirmed its
recommendation at its February 1997 meeting. At its April 1997 meeting,
the Council is scheduled to take action to expand seabird avoidance
measures to the Pacific halibut hook-and-line fishery in Convention
waters in and off Alaska. Depending on Council action, rulemaking to
require seabird avoidance measures may be initiated separately for the
halibut fishery.
Background information on seabird avoidance measures established
for the GOA and BSAI hook-and-line fisheries for groundfish may be
found in the preamble to the proposed rule published in the Federal
Register on March 5, 1997 (62 FR 10016), and in the EA/RIR/FRFA
prepared for this action. Public comment was invited through March 20,
1997. Thirty-three letters of comments were received and are summarized
and responded to below in the ``Response to Comments'' section. Two
letters of comment were received after the close of the public comment
period but did not address any new issues.
Change From the Proposed Rule
The proposed rule at Sec. 679.24(e)(2)(ii) would have required the
avoidance of offal discharge to the extent practicable when setting or
hauling hook-and-line gear. If the discharge of waste was unavoidable,
this activity would have been required to occur aft of the hauling
station or on the opposite side of the vessel to that where gear was
set or hauled. Comment on the proposed rule received from the Alaskan
fishing industry strongly questioned the logic of avoiding the
discharge of offal when setting gear, because waste discharge distracts
birds from baited hooks and currently is employed by the fishing fleet
as a bird avoidance technique. Furthermore, most vessels using hook-
and-line gear typically set gear from the stern, but conduct hauling
activity at a different site on either the starboard or port side of
the vessel. The constraints in the proposed rule on where discharge may
occur from a vessel does not take into account that setting frequently
occurs off the stern of the vessel.
In response to this comment, NMFS has revised the proposed rule at
Sec. 679.24(e)(2)(ii) to require that any discharge of offal from a
vessel must occur in a manner that distracts seabirds, to the extent
practicable, from baited hooks while gear is being set or hauled. 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.
Seabird Bycatch Avoidance Gear and Methods
After considering the public comments received, NMFS is
implementing management measures designed to reduce the incidental
mortality of seabirds. These measures are intended to minimize seabird
attraction to fishing vessels and prevent seabirds from attempting to
seize baited hooks. These measures apply to (1) operators of vessels
fishing for groundfish with hook-and-line gear in the GOA and the BSAI;
and (2) operators of vessels that are required to obtain a Federal
permit and are fishing for groundfish with hook-and-line gear in waters
of the State of Alaska adjacent to the GOA and the BSAI. Exempted from
the measures are vessels that retain more round-weight equivalent of
halibut than round-weight equivalent of groundfish.
1. All applicable hook-and-line fishing operations must 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. Any discharge of offal from a vessel must occur in a manner that
distracts seabirds, to the extent practicable, from baited hooks while
gear is being set or hauled. 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.
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 are 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 final 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.
Many different ways exist to prevent seabirds from taking bait,
getting hooked, and being drowned. No solution is totally effective on
its own, but combinations of solutions can almost completely prevent
bait loss and the killing of birds (Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR), 1996a). Regulations at
Sec. 679.24(e)(2) (i) and (ii) require the mandatory use of two seabird
avoidance measures by all applicable vessels. Section 679.24(e)(2)(iii)
requires that every reasonable effort be made to release alive seabirds
brought on board. In addition, regulations at Sec. 679.24(e)(2)(iv)
require the use of one or more of four seabird avoidance measures. NMFS
strongly encourages fishermen to use as many of these four measures as
is practicable.
Evaluation of Effectiveness of Seabird Avoidance Measures
Seabird avoidance measures have not been scientifically tested in
the Alaskan hook-and-line fisheries. Although seabird avoidance
measures have been studied in Southern Ocean hook-and-line gear
fisheries, differences between
[[Page 23178]]
those fisheries and Alaskan fisheries warrant that testing be performed
in the Alaskan hook-and-line fisheries prior to the application of
measures developed for Southern Ocean fisheries. Some of the
differences between the fisheries are: Target species, gear and gear
deployment, vessel size and vessel configuration, weather and sea
conditions, and prevalent seabird species. Therefore, rather than
adopting measures developed for the Southern Ocean fisheries, NMFS
implements in this final rule Alaskan seabird avoidance requirements
that are structured to allow some flexibility in application, yet
assure that changes in fishing methods will effectively reduce seabird
bycatch. Studies to assess the effectiveness of seabird bycatch
avoidance gear and methods will include the collection of observer
data, testing of gear on NMFS research vessels, and could include
industry surveys. When assessments have occurred and information is
available as to the effectiveness and practicability of specific
seabird avoidance measures in the Alaskan hook-and-line fisheries, NMFS
may revise the regulations to reflect such findings.
USFWS recently amended its 1995 Biological Opinion on the NMFS
Interim Incidental Take Exemption Program and outlined reasonable and
prudent measures that NMFS must implement with regard to the short-
tailed albatross (USFWS, 1997). Two additional non-discretionary
reasonable and prudent measures follow: (1) Vessels in the hook-and-
line fishery of the GOA and BSAI areas shall be required, as soon as
possible but no later than October 1, 1997, to use seabird bycatch
avoidance devices and methods during fishing activities, and (2) a
research program outlining specific plans for testing the effectiveness
of seabird bycatch avoidance gear and methods shall be completed before
January 1, 1998. NMFS intends to implement these recommendations.
Revised Suggestions for Streamer Line Construction
NMFS revises the guidelines on streamer line construction published
in the preamble to the March 5, 1997, proposed rule based on
information that indicates 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) length overall (LOA) deploying gear at
approximately 5 knots may require a thicker dimension of streamer line
(e.g., 8 millimeters (mm)), compared to smaller vessels less than 125
ft (38.1 m) LOA deploying gear at faster speeds of 7 to 8 knots that
may require streamer lines constructed of material only 5 mm in
diameter. 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 4 to 8 m above sea level;
The streamer line for all vessel sizes is constructed of
material that is between 5 and 8 mm in diameter;
Length of streamer line is a minimum of 150 to 175 m for
all vessel sizes;
Number of streamers attached to a streamer line is 6 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 or an adjustable snap;
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 required in this rule. NMFS may
propose 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.
Response to Comments
Comment 1
The proposed measures deviate substantially from and are weaker
than the seabird avoidance regulations established by CCAMLR that NMFS
implemented for the protection of seabirds in the sub-Antarctic
fisheries on March 5, 1996 (61 FR 8483). The proposed Alaskan measures
were initially suggested by the North Pacific Longline Association and
subsequently recommended to NMFS by the Council. NMFS should require
the Alaskan hook-and-line fisheries to comply with the more stringent
CCAMLR measures or something similar and not simply rubber-stamp the
industry proposal.
Response. NMFS disagrees with the recommendation that the CCAMLR
regulations should be implemented for the Alaskan fisheries at this
time. The proposed regulations for seabird avoidance measures in
Alaskan fisheries were based on the CCAMLR regulations. Nonetheless,
differences exist between the sub-Antarctic longline fisheries governed
under the CCAMLR regulations and the Alaskan groundfish hook-and-line
fisheries. These differences 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
mainline 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 the side of the vessel at speeds
of 10-13 knots. The prevalent seabird species incidentally taken are
albatrosses and petrels.
In contrast, the Alaskan hook-and-line groundfish fisheries target
primarily Pacific cod, sablefish, and turbot, which all are demersal
species fished with bottom gear consisting of groundlines to which 1 ft
gangions are attached. In general, larger vessels (100-150 ft (30.5-
45.7 m)) are used in the BSAI and smaller vessels (30-80 ft (9.1-24.4
m)) are used in the GOA. All vessels deploy gear from the stern at
speeds of 5-7 knots. The prevalent seabird species incidentally taken
in the BSAI are fulmars and gulls, while in the GOA fulmars and
albatrosses predominate.
Bottom gear used in the Alaskan hook-and-line fisheries is designed
to sink quickly to reach the bottom where fishing occurs. Typically,
fishermen weight the groundline to achieve its sinking quickly. 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 as bottom gear. The predominant number of relatively small
vessels in the Alaskan hook-and-line fisheries (approximately 1200
vessels, 30-80 ft (9.1-24.4 m)) raises safety concerns with night-
setting of gear as required by CCAMLR regulations (approximately 15-30
vessels, 100-150
[[Page 23179]]
ft (30.5-45.7 m)). The technical standards for streamer lines in CCAMLR
regulations is not appropriate for the gear deployment speeds and the
majority of the vessels in the Alaskan fisheries. 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 another
(Duckworth, 1995; CCAMLR, 1996a). CCAMLR has refined 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, primary
author of ``Catching Fish Not Birds,'' and the CCAMLR publication
``Fish the Sea Not the Sky'' state very clearly that the most
applicable solutions for preventing seabirds from taking baits depend
on the vessel, its size, the crew, weather and sea conditions, and
where and when fishing occurs. These factors must be considered when
implementing regulations for a particular fishery. While certain of the
CCAMLR regulations are appropriate for the Alaskan fisheries and are
incorporated into this final rule, others will be implemented only
after further investigation demonstrates their practicability in the
Alaskan fisheries.
USFWS believes that implementation of the proposed measures will
contribute to the reduction of take of the endangered short-tailed
albatross, and will lead to the development of more specific
requirements for the use of seabird avoidance methods in the future
(USFWS, 1997). 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. USFWS believes that it is essential to
gather data on the effectiveness of seabird avoidance measures as soon
as possible before requiring the mandatory use of potentially costly
measures, such as those adopted by CCAMLR in the Alaskan fisheries.
USFWS believes that the regulations recommended by the Council and
proposed by NMFS should significantly reduce seabird bycatch. NMFS
concurs with these views held by USFWS.
Comment 2
CCAMLR regulations require the use of thawed bait. NMFS should
require the same in Alaskan waters. NMFS should also require that the
hooks or groundlines be weighted such that they sink quickly.
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
is to use thawed bait or weighted groundlines. Although the preamble of
the proposed rule noted these methods, NMFS believes that specifying
the methods in 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 BSAI hook-and-line 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.
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) types of bait that sink
faster, and (2) the use of weighted hooks on groundlines.
The proposed rule would establish a performance standard for the
Alaskan groundfish hook-and-line fisheries 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 1) and given the limited amount of
information available on their effectiveness, NMFS believes that
fishermen must have some flexibility in method and means in meeting
this performance standard rather than specifying in regulation how the
standard must be met.
Comment 3
The CCAMLR requirement to use thawed bait should not be imposed for
the Alaskan hook-and-line fleet, which typically uses partially thawed
bait in automatic baiting operations. Fisheries regulated by CCAMLR use
15-ft (4.6 m) gangions that allow baited hooks to remain on the surface
until the mainline descends 15 ft (4.6 m) and sinks the hooks. In
contrast, the majority of Alaskan hook-and-line vessels use shorter
gangions, approximately 1-ft (0.3 m) long. As long as fishermen
adequately weight their groundlines, which is the only way to make
baited hooks sink as soon as they are put in the waters, use of thawed
bait has a negligible effect on the sinking rate of weighted hook-and-
line gear in the Alaskan hook-and-line fishery.
Response. NMFS agrees. If fishermen use weighted groundlines that
cause the hooks to sink as soon as they are put in the water, they
would be in compliance with the rule. Nonetheless, the use of thawed
bait remains an option to enhance the sinking rate of hook-and-line
gear for the reasons provided in the response to Comment 2.
Comment 4
NMFS should require the use of a streamer line and the setting of
hook-and-line gear at night. The proposed measures do not require
either, although a vessel must choose one avoidance technique that may
include night-setting or streamer lines. The publication ``Catching
Fish Not Birds'' emphasizes that fishing vessels must employ several
avoidance techniques to be effective, not a ``pick one'' strategy as
proposed in the Alaskan regulations.
Response. As explained in the response to Comment 1, 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
rule
[[Page 23180]]
would require that more than one avoidance measure be used. Regulations
at Sec. 679.24(e)(2)(i) and (ii) require seabird avoidance measures of
all applicable hook-and-line vessels fishing for groundfish. Section
679.24(e)(2)(iii) requires that every reasonable effort be made to
release alive seabirds brought on board. In addition, applicable hook-
and-line vessels must employ at least one of four seabird avoidance
measures set forth at Sec. 679.24(e)(2)(iv). NMFS does not limit a
vessel to using only one of these measures.
National Standard 10 of the Magnuson-Stevens Act requires that
measures shall, to the extent practicable, promote the safety of human
life at sea. Night-setting may pose safety concerns for smaller
vessels. Requiring mandatory night-setting may be neither practicable
nor an effective seabird deterrent in the Alaskan fishery given (1)
that 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) safety
concerns 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 must be used or gear must be deployed at
night (Murray et al, 1993). Concerns were raised that recommending
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 and night-setting was removed as a license
requirement (Duckworth, 1995). Australia, another leading nation in
seabird bycatch 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 5
Vessels should be required to employ all three of the following
measures at all times: Night-setting, streamers, and deployment of
hooks underwater using lining tubes.
Response. NMFS disagrees. As explained in the responses to Comments
1 and 4, 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. In addition, NMFS does not limit the number of
seabird avoidance measures that may be employed. At this time, the
preferred option is to implement seabird avoidance measures for the
Alaskan hook-and-line fisheries that (1) provide the industry some
flexibility in choosing seabird avoidance techniques that are
appropriate for different vessel size categories and fishing
operations, and (2) allow for the development and assessment of the
effectiveness of these measures to determine whether they should be
made mandatory.
Comment 6
The option for fishermen to use night-setting as a seabird
avoidance technique should be dropped at this time, pending
clarification of the feeding habits of short-tailed albatross.
Preliminary information indicates these birds may have nocturnal
feeding habits.
Response. NMFS disagrees. Although questions exist whether or not
short-tailed albatross are nocturnal feeders, many other bird species
are not. Available literature suggests that night-setting can be an
effective technique to avoid catching birds in hook-and-line fisheries
and NMFS does not have information to indicate otherwise. Therefore,
NMFS will retain night setting as an optional seabird avoidance
measure.
Comment 7
NMFS should not impose mandatory night and day restrictions on
setting of hook-and-line gear. These restrictions should be retained as
optional measures to reduce seabird mortality in the hook-and-line
fisheries. The number of daylight hours widely vary in northern
latitudes. Restrictions to limit fishing operations to hours of
darkness would severely limit fishing operations, especially during the
months of June or July when very few, if any hours of darkness exist.
Furthermore, a prohibition on fishing operations during daylight would
limit the ability of vessel operators to fish in a manner that avoids
bycatch and mortality of other species of concern such as Pacific
halibut.
Response. NMFS agrees. As explained in the responses to Comments 1,
4, and 5, 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. NMFS does not limit the number of seabird avoidance
measures that may be employed. At this time, the preferred option is to
implement seabird avoidance measures for the Alaskan hook-and-line
fisheries that (1) provide the industry some flexibility in choosing
appropriate seabird avoidance techniques, and (2) allow for the
development and assessment of the effectiveness of these measures to
determine whether they should be made mandatory. At this time, night-
setting of hook-and-line gear will remain an optional measure to reduce
seabird mortality.
Comment 8
The technical specifications of the streamer line should be
included in the proposed rule, as they are under the CCAMLR
regulations. Furthermore, streamer lines should be required for all
boats equal to or greater than 100 ft (30.5 m) LOA.
Response. NMFS disagrees. As explained in the responses to comments
1, 4, and 5, 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. This approach will provide the industry some
flexibility in choosing appropriate seabird avoidance techniques and
allow for the development and assessment of the effectiveness of these
measures to determine whether they should be made mandatory. NMFS has
revised guidelines for streamer line construction based on preliminary
information from a commercial supplier of this equipment. The revised
guidelines in the preamble of this final rule reflect variations in
streamer line specifications that may be necessary according to vessel
length and gear setting speed. Sturdier construction materials also may
be necessary given the harsh Alaskan weather and sea conditions. In
1993, New Zealand fisheries required CCAMLR streamer line
specifications as a minimum standard. It has since been determined that
in some instances these technical specifications are not suitable for
smaller vessels. When testing has occurred and information is available
as to the effectiveness of various constructions of streamer lines in
the Alaskan hook-and-line fisheries, NMFS may revise the regulations to
include technical specifications for construction of streamer lines.
[[Page 23181]]
If streamer lines are proven effective in reducing seabird
mortality in the Alaskan hook-and-line fisheries, NMFS, in consultation
with the Council, can amend regulations to require mandatory use of
streamer lines on larger hook-and-line vessels.
Comment 9
Simply towing a stick, board, or buoy behind a hook-and-line vessel
will not significantly reduce seabird bycatch. Furthermore, these
devices should be allowed only on those vessels with an observer aboard
until such devices have been demonstrated to be as effective as
streamer lines. Preferably, this option should be deleted.
Response. NMFS believes that preliminary 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.
The towing of a buoy, board, stick, or other device may not be totally
effective on its own, but combinations of solutions can significantly
reduce seabird bycatch.
Comment 10
The proposed rule at Sec. 679.24(e)(2)(iv)(B) should be revised to
include an allowance for towing of a broom and minimum standards for
the broom or stick should be specified. Furthermore, the regulatory
phrase ``or other device'' should be deleted entirely from this
regulation. It is the towing of a buoy or a broom that has been used by
local fishermen as a bird avoidance technique, not the towing of other
devices. If fishermen develop a new device-towing technique that proves
to be more effective than a buoy bag or a broom, that should be
considered in regulations at a later time.
Response. NMFS' intent in using the term ``stick'' instead of
``broom'' as a towing device is that the former term may be more
broadly applied and would include a broom. NMFS has maintained the
option for fishermen to use devices other than buoys, boards, or sticks
to tow behind a vessel as a bird deterrent with the intent of providing
fishermen some flexibility to explore bird avoidance techniques outside
those strictly defined in the final rule. Future rulemaking can include
specific standards for towed devices once information on which to base
these standards becomes available.
Comment 11
It is ironic that NOAA/NMFS would require specific seabird
avoidance measures for U.S. vessels longlining south of 30 deg. south
lat. and pay for the reprinting of the publication ``Catch Fish Not
Birds'' that endorses these same regulations, but fail to require these
measures in Alaskan waters to prevent the deaths of short-tailed
albatross and other seabirds. The ability of the United States to
influence long term international conservation efforts is dependent on
the United States leading by example through adoption CCAMLR
regulations for the Alaskan hook-and-line fisheries.
Response. As explained in the response to Comment 1, 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. NMFS
recognizes and endorses international efforts to address seabird
bycatch problems, and in this final rule adopts seabird avoidance
measures that are appropriate for the Alaskan hook-and-line fisheries.
Comment 12
The proposed regulations are necessary and should be implemented
without delay.
Response. NMFS agrees.
Comment 13
NMFS should include new bait casting methods as optional seabird
avoidance measures. During line setting, two ways exist to throw the
bait out of the turbulence of the vessel's wake and propeller in order
to increase its sink rate: Fishermen can use an automatic bait throwing
machine or they can educate their crew to throw the baited lines at
least 10 m clear of the ship. Automatic bait throwing machines can
significantly reduce seabird bycatch if used in conjunction with
streamer lines.
Response. NMFS acknowledges that promising seabird avoidance
techniques for the Alaskan fisheries likely exist other than those
listed in the proposed rule. Alternative bait casting methods can be
employed by fishermen and considered in future rulemaking if warranted.
Comment 14
The deployment of streamer lines and/or towing buoys during rough
weather is probably of questionable value and would present another
complication during difficult and possibly dangerous operating
conditions. During times when winds are in excess of 30 knots and
during times of darkness, seabirds are not flying. Bird avoidance
measures are not necessary during these times and could pose safety
hazards for vessel operators and crew.
Response. NMFS disagrees. Current information from Australia and
New Zealand indicates that, for certain seabird species (e.g., species
in the order Procellariiformes), the number of seabirds present
actually increases as the wind increases to about 50 knots and then may
decrease in winds greater than 60 knots.
Comment 15
Dumping of fish waste when setting baited hooks actually acts as a
lure to draw the birds away from the stern and the hooks. NMFS should
eliminate reference in the proposed rule to the avoidance of dumping of
offal while setting gear because this activity is a recognized measure
used by the Alaskan fleet to reduce seabird mortality. Furthermore, the
proposed rule should be revised to use only the vessel hauling location
as the site of reference for the discharge of offal, given that most
vessel operators set their gear from the stern.
Response. NMFS agrees and has changed the proposed rule to require
that any discharge of offal from a vessel must occur in a manner that
distracts seabirds, to the extent practicable, from baited hooks while
gear is being set or hauled. 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. Numerous comments were received from
the Alaskan hook-and-line industry expressing the apparent
effectiveness of waste discharge in distracting seabirds from baited
hooks. Nonetheless, the CCAMLR Scientific Committee recommends that
offal discharge not be used in this way, because it can attract more
seabirds to the vicinity of the vessel (CCAMLR, 1996b). In view of this
position, therefore, NMFS will assess the long term effectiveness of
this measure and may propose modification or recision if circumstances
warrant.
Comment 16
The proposed measure to encourage alternative offal disposal
practices is supported. Avoiding the disposal of fish and bait waste
during setting and hauling lessens the incentive for birds to follow
fishing vessels in search of food. Fishermen can dispose of waste
during other times of the fishing cycle or dump at sea in frozen blocks
or in a homogenized state to reduce seabird interactions.
[[Page 23182]]
Response. The final rule will allow the discharge of offal during
setting of gear, based on the testimony and comment from numerous
Alaskan fishermen that properly discharged offal actually distracts
birds from baited hooks.
Comment 17
Regulations for seabird avoidance measures in the Eastern GOA are
not necessary. The small-boat fleet that typically fishes in the
eastern GOA does not catch many birds and never has taken the
endangered short-tail albatross. This fleet uses a leaded or weighted
groundline and the gear and baited hooks sink very fast so that
seabirds do not have much of an opportunity to get hooked.
Response. NMFS disagrees. Due to recent takes of the endangered
short-tailed albatross and a heightened awareness of a seabird bycatch
problem, NMFS believes that reductions in seabird bycatch are necessary
and appropriate regardless of where a vessel using hook-and-line gear
is fishing.
Comment 18
Snap-on gear used by many vessels in the Alaskan hook-and-line
fisheries is weighted by galvanized or stainless steel snaps that
attach the hooks to the groundline and sink quickly, hence avoiding a
seabird problem.
Response. If gear methods cause the hooks, when baited, to sink as
soon as they are put in the water, then the gear method would be in
compliance with the rule at Sec. 679.24(e)(2)(i). Nonetheless, small
vessels using hook-and-line gear still must comply with other seabird
avoidance provisions of the rule Sec. 679.24(e)(2)(iv) to minimize, to
the extent practicable, interactions between fishing operations and
seabirds.
Comment 19
Concern has been raised about the enforceability of the proposed
regulations. The bad publicity associated with seabird bycatch in
general and the dire and well-publicized consequences of short-tailed
albatross mortality in particular are sufficient to ensure compliance.
Fishermen using hook-and-line gear recognize the necessity of the
seabird avoidance techniques and will comply with the regulations.
Response. NMFS believes that the regulations can be enforced and
will reduce seabird bycatch in these fisheries.
Comment 20
Fishermen must be provided some flexibility to assess different
situations and use judgment on how best to avoid catching birds.
Response. NMFS agrees. The final rule requires that baited hooks
sink as soon as they are put in the water and that the discharge of
offal be conducted in a manner that distracts seabirds away from baited
hooks. The rule largely relies on the judgment of fishermen to discern
how best to meet these standards. Options also are provided for
additional seabird mitigation measures that are intended to provide a
sufficient number of choices to fishermen to meet different fishing
conditions and operations.
Comment 21
NMFS must commit to a reassessment of proposed measures based on an
appropriately designed and statistically valid research plan. The final
rule should include a provision that seabird avoidance measures be
evaluated and revised based on the results of that research.
Response. The terms and conditions of the recently amended
biological opinion issued in the ESA section 7 consultation with the
USFWS requires NMFS to (1) implement as soon as possible but no later
than October 1, 1997, regulations applicable to vessels in the hook-
and-line fisheries of the GOA and BSAI requiring the use of seabird
bycatch avoidance devices and methods during fishing activities, and
(2) complete before January 1, 1998, a research plan outlining specific
plans for testing of seabird bycatch avoidance gear and methods.
In response to these nondiscretionary requirements, NMFS is
implementing the subject final rule and is pursuing the development of
a research plan to assess the effectiveness of seabird avoidance
techniques.
Comment 22
NMFS is encouraged to follow the advice of the USFWS to reinitiate
consultation if two short-tailed albatross are taken during the 1997
fishery so that any new information relative to the consultation can be
examined and to avoid approaching the incidental take level of 4 birds
over a 2-year period and potential disruption of the fishery.
Response. NMFS agrees and will reinitiate consultation if two birds
are taken during the 1997 fishery.
Comment 23
Rulemaking to mitigate seabird mortality in the hook-and-line
fisheries should include more detailed information on the appropriate
procedure necessary to remove a hook from a live bird's throat. NMFS
mailed this information to nearly 2,000 hook-and-line groundfish
fishermen last year. Although the majority of birds are caught during
setting of gear, a small number are hooked during hauling. For this
reason, acting quickly to bring on board seabirds that are captured
alive and safely removing hooks before releasing the birds are
important practices.
Response. NMFS agrees that it is important to distribute to the
fishing fleet information on the proper release of birds that are
captured on hooks during haul back activities. NMFS will continue to
support effective distribution to the fleet of information that
addresses measures to reduce seabird mortality associated with fishing
operations.
Comment 24
If the proposed seabird avoidance measures do not eliminate seabird
interactions, NMFS should consider time/area closures to avoid bycatch
of birds.
Response. NMFS, in consultation with the Council, likely would
consider a change in fishing seasons or other measures to reduce
seabird mortality, if necessary.
Comment 25
The proposed rule should be revised to require all hook-and-line
vessels to carry at least one observer to monitor compliance and
effectiveness of seabird bycatch mitigation measures.
Response. The Alaskan groundfish fishery already is one of the most
intensively observed fisheries in the world. In 1996, over 30,000
observer days occurred. The industry pays for observer services and
annual costs to the industry range between $6 and $7 million. All
vessels equal to and over 125 ft (38.1 m) LOA must carry an observer
aboard at all times. Vessels ranging between 60 ft (18.3 m) and 125 ft
(38.1 m) LOA that fish for groundfish must have an observer aboard 30
percent of the vessels' fishing days during each calendar quarter. Most
of the vessels using hook-and-line gear in the BSAI are larger vessels
and carry an observer at all times. In the GOA, however, vessels
typically are smaller and have less observer coverage. To require these
vessels to carry an observer at all times would be prohibitively
costly. NMFS believes that existing observer coverage, together with an
appropriate research plan to assess the effectiveness of seabird
mitigation measures, will provide sufficient information to assess the
overall effectiveness of the proposed seabird mitigation measures.
[[Page 23183]]
Comment 26
NMFS should encourage fishermen to test underwater gear setting
systems, which are very effective in avoiding seabird mortality. CCAMLR
will be reviewing the feasibility of using these systems based on
trials during this season.
Response. NMFS agrees. At least one owner of a vessel participating
in the Alaskan hook-and-line fishery has notified NMFS that he is
installing a lining tube on board his vessel and that he will keep NMFS
appraised of the effectiveness of that system on board his vessel for
possible consideration in the future as a regulatory requirement.
References
AFMA, 1996. Australia Fishing Zone (AFZ) Observer Program. Summary
of the 1995 Japanese Southern Bluefin Tuna Winter Fishing Season
Report, Australian Fisheries Management Authority, January 1996.
Brothers, N. 1991. Albatross Mortality and Associated Bait Loss in
the Japanese Longline Fishery in the Southern Ocean. Biological
Conservation. 55:255-268.
________ 1996. Catching Fish Not Birds: A Guide to Improving Your
Longline Fishing Efficiency. Australian Longline Version, Parks &
Wildlife Service, Tasmania, Australia, 73 pp.
CCAMLR, 1996a. 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, 46 pp.
CCAMLR, 1996b. CCAMLR Scientific Committee Report, 1996. Department
of Conservation. 1997. Tables for Tori Line Construction.
Conservation Science Centre, Wellington, New Zealand, personal
communication.
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, 60 pp.
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, 95 pp.
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. 58pp.
USFWS. 1997. Amended Biological Opinion on the NMFS Interim
Incidental Take Exemption Program. USFWS communication to NMFS,
February 19.
USFWS. 1997. Correspondence to American Bird Conservancy, March 3.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS prepared a FRFA which describes the impact this final rule
would have on small entities. Based on the analysis, it was determined
that this 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 as indicated by recent takes (e.g., two in 1995).
This rule's combined mandatory and alternative provisions could
result in a significant economic impact on a substantial number of
small entities depending on which measures are used. In some cases,
procedural or operational changes may be necessary in fishing
operations. However, this rule does provide a range of alternatives
that will enable vessel owners to minimize the economic impacts they
experience. 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. Such revised measures could range from additional or
modified seabird avoidance measures, to fishery 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. The
likelihood of exceeding the take limit is less under the final rule
than under the status quo alternative. NMFS has taken steps in the
final rule to minimize economic impacts on small entities consistent
with the objectives of the Magnuson-Stevens Act. These steps include:
(1) Allowing a choice of measures to be used, and (2) including options
that may already be in use. The required measures were determined to be
the least burdensome on small entities. The no-action alternative was
rejected as more burdensome on small entities because if the incidental
take were exceeded and closures were imposed, the likely effect would
be a significant loss of fishing opportunity for all small entities
involved in the groundfish hook-and-line fishery. The economic impacts
of this final 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: April 23, 1997.
Gary Matlock,
Acting 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. 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
[[Page 23184]]
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) Any discharge of offal from a vessel must occur in a manner
that distracts seabirds, to the extent practicable, from baited hooks
while gear is being set or hauled. 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.
(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 birds.
(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;
(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.
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]
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
\1\ This measure cannot be exercised during June.
\2\ This measure cannot be exercised during July.
[FR Doc. 97-10944 Filed 4-28-97; 8:45 am]
BILLING CODE 3510-22-P