[Federal Register Volume 62, Number 240 (Monday, December 15, 1997)]
[Proposed Rules]
[Pages 65635-65638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32682]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 971201282-7282-01; I.D. 102897B]
RIN 0648-AK38


Halibut Fisheries in U.S. Convention Waters Off Alaska; Fisheries 
of the Exclusive Economic Zone Off Alaska; Management Measures to 
Reduce Seabird Bycatch in the Hook-and-Line Halibut and Groundfish 
Fisheries

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations that would require operators of 
vessels fishing for Pacific halibut in U.S. Convention waters off 
Alaska to conduct fishing operations in a specified manner and to 
employ specified measures intended to reduce seabird bycatch and 
incidental seabird mortality. This rule would also amend the 
regulations requiring seabird bycatch avoidance measures in the hook-
and-line groundfish fisheries of the Bering Sea and Aleutian Islands 
(BSAI) and the Gulf of Alaska (GOA) to clarify one of the measures. The 
proposed halibut fisheries measures are intended to mitigate 
interactions with the short-tailed albatross (Diomedea albatrus), an 
endangered species protected under the Endangered Species Act (ESA), 
and with other seabird species in fisheries in and off Alaska.

DATES: Comments must be received by January 14, 1998.

ADDRESSES: Comments should be sent to Chief, Sustainable Fisheries 
Division, Alaska Region, NMFS, P.O. Box 21668,

[[Page 65636]]

Juneau, AK 99802, Attn: Lori J. Gravel, or delivered to Room 401 of 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 regulatory 
amendment may be obtained from NMFS at the above address, or by calling 
the Alaska Region, NMFS at 907-586-7228.

FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.

SUPPLEMENTARY INFORMATION: The U.S. groundfish fisheries of the GOA and 
the BSAI in the exclusive economic zone are managed by NMFS under the 
Fishery Management Plan for Groundfish of the Gulf of Alaska and the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMPs). The FMPs were prepared by the North 
Pacific Fishery Management Council (Council) under the Magnuson-Stevens 
Fishery Conservation and Management Act (16 U.S.C. 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. The 
Northern Pacific Halibut Act of 1982 (Halibut Act), 16 U.S.C. 773 et 
seq., authorizes the Council to develop and NMFS to implement 
regulations concerning halibut that are in addition to, and not in 
conflict with, regulations adopted by the International Pacific Halibut 
Commission (IPHC). Furthermore, the Magnuson-Stevens Act and the 
Halibut Act authorize the Council and NMFS to make regulatory changes 
that are consistent with the FMPs and that are necessary to conserve 
and manage the fixed gear Pacific halibut fisheries.

Background

    The issue of seabird bycatch and incidental mortality in commercial 
fishing operations has been heightened in recent years. Further 
information on this issue was provided in the preambles to the proposed 
and final rules implementing seabird avoidance measures in the GOA and 
BSAI hook-and-line groundfish fisheries (62 FR 10016, March 5, 1997; 62 
FR 23176, April 29, 1997), and the EA/RIR/FRFA prepared for that 
action. In addition, the United States is working with the United 
Nations' Food and Agriculture Organization to conduct a technical 
consultation on implementing mitigation measures to reduce seabird 
bycatch in longline fisheries around the world (62 FR 42766, August 8, 
1997). NMFS and the U.S. Fish & Wildlife Service (USFWS) are the U.S. 
co-leaders in this effort.
    Recent takes of the endangered short-tailed albatross (two in 1995 
and one in 1996) in hook-and-line groundfish fisheries in the BSAI and 
the GOA highlight a seabird bycatch problem. At its December 1996 
meeting, the Council voted unanimously to recommend that all hook-and-
line vessels fishing for groundfish in the GOA and BSAI be required to 
use certain seabird bycatch avoidance measures intended to reduce the 
incidental mortality of the short-tailed albatross and other seabird 
species. Furthermore, the Council recommended that these or similar 
measures be implemented in the Pacific halibut fishery in U.S. 
Convention waters off Alaska. Addressing a potential seabird bycatch 
problem in the Pacific halibut fishery is warranted given the 
similarities between the Pacific halibut fishery and the hook-and-line 
groundfish fisheries. At its annual meeting in January 1997, the IPHC 
reviewed and concurred with the development of seabird avoidance 
measures for the Pacific halibut fishery in U.S. Convention waters off 
Alaska.
    A proposed rule that would implement seabird avoidance measures in 
the Alaska groundfish hook-and-line fisheries was published in the 
Federal Register on March 5, 1997 (62 FR 10016) and public comments 
were accepted through March 20, 1997. Final regulations were published 
April 29, 1997 (62 FR 23176). At its June 1997 meeting, the Council 
recommended extending the seabird avoidance requirements in the Alaska 
groundfish hook-and-line fisheries to the Pacific halibut fishery in 
U.S. Convention waters off Alaska. The Council also recommended that 
vessels less than 26 ft (7.9 m) length overall (LOA) in the Pacific 
halibut fishery and in the GOA and BSAI groundfish hook-and-line 
fisheries be exempt from some of the specified seabird avoidance 
measures.

Proposed Seabird Bycatch Avoidance Gear and Methods in the Pacific 
Halibut Fishery

    The following proposed measures would apply to vessels fishing for 
Pacific halibut with hook-and-line gear in U.S. Convention waters off 
Alaska and are not intended to differ from measures implemented for the 
GOA and BSAI groundfish fisheries.
    1. All applicable hook-and-line fishing operations:
    a. Must 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. If offal is discharged while gear is being set or hauled, it 
must be discharged in a manner that distracts seabirds from baited 
hooks, to the extent practicable. The discharge site on board a vessel 
must either be aft of the hauling station or on the opposite side of 
the vessel from the hauling station; and
    c. Must make every reasonable effort to ensure that birds brought 
aboard alive are released alive and that, wherever possible, hooks are 
removed without jeopardizing the life of the bird.
    2. All vessels greater than or equal to 26 ft (7.9 m) LOA and using 
hook-and-line gear must employ one or more of the following seabird 
avoidance measures:
    a. Set gear between hours of nautical twilight (as specified in 
paragraph (e)(2)(iv)(D) of this section) using only the minimum 
vessel's lights necessary for safety;
    b. Tow a streamer line or lines during deployment of gear to 
prevent birds from taking hooks;
    c. Tow a buoy, board, stick or other device during deployment of 
gear at a distance appropriate to prevent birds from taking hooks. 
Multiple devices may be employed; or
    d. Deploy hooks underwater through a lining tube at a depth 
sufficient to prevent birds from settling on hooks during deployment of 
gear.
    This proposed rule would also remove a regulation at 50 CFR 
679.24(e)(1)(ii) that effectively exempts halibut fishermen from having 
to use seabird avoidance gear and methods. When the seabird avoidance 
measures were promulgated for the Alaska groundfish fisheries, halibut 
fishermen were exempt until the Council and the IPHC could address this 
issue in the Pacific halibut fishery. This exemption would no longer be 
appropriate if NMFS approves this proposed rule.

Exemption for Operators of Small Vessels in the Pacific Halibut 
Fishery and the Alaska Groundfish Hook-and-Line Fisheries

    Vessels less than 26 ft (7.9 m) LOA using hook-and-line gear in the 
Pacific halibut fishery and vessels less than 26 ft (7.9 m) LOA using 
hook-and-line gear in the groundfish fisheries in the BSAI or GOA would 
be required to comply with the above measures 1a through 1c, but would 
not be required to comply with measure 2.
    Relatively little scientific information is available regarding the 
relationship of vessel size to seabird bycatch. One study of an 
experimental hake longline fishery off South Africa noted that

[[Page 65637]]

variations in the numbers of observed seabird catches appeared to be 
related, at least in part, to the extent to which birds congregate 
around vessels. This, in turn, appeared to be a function of the length 
of time during which offal is discarded. Smaller vessels may not 
attract scavenging seabirds to as great an extent as do large vessels, 
which provide a continuous supply of food. For example, smaller vessels 
fishing off the southwest cape in South Africa do not attract large 
numbers of scavenging birds because hauling and setting periods are 
much shorter and irregular, and the offal is available to birds only 
for short periods and in small quantities.
    Public testimony at the Council meeting in June 1997 supported 
exempting small vessels from some of the avoidance measures. 
Representatives of fishing vessel associations testified that fishing 
practices of vessels less than 26 ft (7.9 m) LOA did not warrant the 
more extensive measures that are required under the current groundfish 
regulations, primarily because such vessels typically (1) use baited 
hooks that sink as soon as they enter the water; (2) use anchored 
groundlines; (3) deploy snap-on gear which adds weight to the 
groundline; (4) deploy gear at slow speeds, allowing the gear to sink 
immediately; (5) have minimal freeboard at the stern, reducing the 
exposure of baited hooks to seabirds; (6) use offal discharge in 
smaller quantities and more sporadically relative to larger vessels, 
thus providing less of an attraction to seabirds; and (7) fish in 
nearshore areas where the likelihood of encountering the short-tailed 
albatross and other pelagic seabirds is minimal. Small vessels using 
snap-on gear are less likely to have a seabird bycatch problem because 
of the weight of the snaps and the slow speed at which gear is 
deployed, both factors that contribute to the baited hooks sinking 
immediately upon gear deployment. Using snap-on gear requires 
attachment of gangions manually to the groundline as it is being 
deployed, so the vessel must deploy gear at slower speeds than when 
using conventional gear. The vessel length criterion of 26 ft (7.9 m) 
LOA was chosen because vessels of this size represent the typical skiff 
fleet. In 1996, of the 2,124 vessels that made landings in the halibut 
and sablefish fisheries, 328 were less than 26 ft (7.9 m) LOA (15 
percent of the total number of vessels making halibut and sablefish 
landings). In 1996, of the 1,847 vessels issued Federal fisheries 
permits for the BSAI and GOA groundfish fisheries, 47 were less than 26 
ft (7.9 m) LOA (2.5 percent of the total number of vessels issued 
Federal fisheries permits in 1996).

Proposed Amendment to Clarify Offal Discharge Requirement in the 
Alaska Groundfish Hook-and-Line Fisheries

    The final rule promulgating seabird avoidance regulations for the 
Alaska groundfish hook-and-line fisheries (62 FR 23176; April 29, 1997) 
requires 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. Public comment received after 
the final rule was published indicated that some persons interpreted 
the regulation to require offal discharge during the setting or hauling 
of gear. This was not NMFS' intent. This proposed rule would amend 
Sec. 679.24(e)(2)(ii) to state more clearly NMFS' intent that if offal 
is discharged while gear is being set or hauled, it must be discharged 
in a manner that distracts seabirds from baited hooks, to the extent 
practicable.

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 that describes the impact 
this proposed rule would have on small entities, if adopted. A copy of 
this analysis is available from NMFS (see ADDRESSES). Based on the 
analysis, it was determined that this proposed rule could have a 
significant negative economic impact on a substantial number of small 
entities. In 1996, 2,124 vessels landed halibut from U.S. Convention 
waters off Alaska. Of these vessels, 1,935 were less than 60 ft (18.3 
m) LOA. NMFS does not have data indicating how many of these vessels 
are small entities, but it is reasonable to assume that most are small 
entities, and that all vessels under 60 ft are small entities.
    The Regulatory Flexibility Act requires that the IRFA describe 
significant alternatives to the proposed rule that accomplish the 
stated objectives of the applicable statutes and that minimize any 
significant negative impact on small entities. Consistent with the 
stated statutory objectives, the IRFA must discuss significant 
alternatives to the proposed rule, such as (1) establishing different 
reporting requirements for small entities that take into account the 
resources available to small entities; (2) consolidating or simplifying 
reporting requirements; (3) using performance rather than design 
standards; and (4) allowing regulatory exemptions for small entities. 
Alternatives that addressed modifying reporting requirements for small 
entities were not considered by the Council or in this analysis. Such 
alternatives are irrelevant to this proposed action and would not 
mitigate the impacts on small entities. The proposed seabird avoidance 
measures are based on performance standards rather than on design 
standards, therefore alleviating a potential economic burden to small 
entities. The exemption for vessels less than 26 ft (7.9 m) LOA (all 
small entities) in the proposed rule would also alleviate a potential 
economic burden to small entities. In 1996, of the 2,124 vessels that 
made landings in the halibut and sablefish fisheries, 328 were less 
than 26 ft (7.9 m) LOA (15 percent of total number of vessels making 
halibut and sablefish landings). In 1996, of the 1,847 vessels that 
were issued Federal fisheries permits for the BSAI and GOA groundfish 
fisheries, 47 were less than 26 ft (7.9 m) LOA (2.5 percent of 1996 
Federal fisheries permittees).
    A variety of alternatives that would achieve this action's goal 
while minimizing economic impacts were considered. To provide maximum 
flexibility to participants in the fishery these alternatives are 
included in the proposed rule as options from which a vessel operator 
may chose in deciding how to comply with this proposed rule. 
Consequently, there are no additional alternatives that would mitigate 
the economic impact while achieving this action's purpose that can be 
discussed in this section. The economic impacts of this proposed rule 
would vary depending on which seabird avoidance measures a fisherman 
employs. The cost of buoys and bird streamer lines as seabird bycatch 
avoidance devices range from $50 to $250 per vessel. A lining tube is a 
technology used in fisheries of other nations to deploy baited hooks 
underwater to avoid birds and is offered as a possible option. NMFS 
anticipates that the operators of smaller vessels (less than 60 ft 
(18.3 m)) would choose an avoidance measure other than a lining tube, 
which could cost as much as $35,000 per vessel. There were 189 hook-
and-line vessels equal to or greater than 60 ft (18.3 m) that made 
halibut landings in 1996.
    Although this action could result in economic impacts on small 
entities, the status quo alternative could result in even more severe 
economic impacts. Failure to establish seabird avoidance measures 
proposed under this action could increase the likelihood of exceeding 
the incidental take limit to be specified for the short-tailed 
albatross. In that event, additional measures to

[[Page 65638]]

minimize the take of short-tailed albatross could be implemented, 
ranging from those proposed in this rule to additionally more stringent 
measures, including closures. The economic impacts to small entities 
resulting from such measures would depend on a variety of factors, 
although very significant negative impacts could be expected if the 
halibut fishery were closed due to the take of short-tailed albatross 
in excess of the incidental take authorized under the section 7 
consultation with the USFWS.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: December 9, 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 
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., 1801 et seq., and 3631 et seq.

    2. In Sec. 679.24, paragraph (e)(1)(ii) is removed, paragraphs 
(e)(1)(i), (e)(2)(iv) introductory text, and (e)(2)(iv)(A) through 
(e)(2)(iv)(D) are redesignated as paragraphs (e)(1), (e)(3) 
introductory text, and (e)(3)(i) through (e)(3)(iv), respectively, and 
redesignated paragraphs (e)(1) and (e)(3) introductory text and 
paragraph (e)(2)(ii) are revised to read as follows:


Sec. 679.24  Gear limitations.

* * * * *
    (e) Seabird avoidance gear and methods for hook-and-line vessels 
fishing for groundfish--(1) Applicability. The operator of a vessel 
that is required to obtain a Federal fisheries permit under 
Sec. 679.4(b)(1) must comply with the seabird avoidance measures in 
paragraphs (e)(2) and (e)(3) of this section while fishing for 
groundfish with hook-and-line gear in the BSAI, in the GOA, or in 
waters of the State of Alaska that are shoreward of the BSAI and the 
GOA.
    (2) * * *
    (ii) If offal is discharged while gear is being set or hauled, it 
must be discharged in a manner that distracts seabirds from baited 
hooks, to the extent practicable. The discharge site on board a vessel 
must be either aft of the hauling station or on the opposite side of 
the vessel from the hauling station.
* * * * *
    (3) For a vessel greater than or equal to 26 ft (7.9 m) LOA, the 
operator of that vessel described in paragraph (e)(1) of this section 
must employ one or more of the following seabird avoidance measures:
* * * * *
    3. In Sec. 679.42, paragraph (b) is revised to read as follows:


Sec. 679.42  Limitations on use of QS and IFQ.

* * * * *
    (b) Gear. (1) IFQ Fisheries Halibut IFQ must be used only to 
harvest halibut with fishing gear authorized in Sec. 679.2. Sablefish 
fixed gear IFQ must not be used to harvest sablefish with trawl gear in 
any IFQ regulatory area, or with pot gear in any IFQ regulatory area of 
the GOA.
    (2) Seabird avoidance gear and methods. The operator of a vessel 
using gear authorized at Sec. 679.2 while fishing for IFQ halibut or 
hook-and-line gear while fishing for IFQ sablefish must comply with 
requirements for seabird avoidance gear and methods set forth at 
Sec. 679.24(e).
* * * * *
[FR Doc. 97-32682 Filed 12-12-97; 8:45 am]
BILLING CODE 3510-22-F