[Federal Register Volume 63, Number 44 (Friday, March 6, 1998)]
[Rules and Regulations]
[Pages 11161-11167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5834]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 971201282-8049-02; 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: Final rule.

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

SUMMARY: NMFS issues regulations to 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 also amends the regulations requiring 
seabird bycatch avoidance measures in the hook-and-line groundfish 
fisheries of the Bering Sea and Aleutian Islands management area (BSAI) 
and the Gulf of Alaska (GOA) to exempt small vessels from some of the 
requirements and to clarify one of the measures. The Pacific halibut 
fishery 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: Effective April 6, 1998.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this final rule may be obtained from NMFS at P.O. Box 21668, Juneau, AK 
99802, Attn: Lori J. Gravel, or by calling the Alaska Region, NMFS, at 
907-586-7228. Copies of the EA/RIR/FRFA prepared for the action 
requiring seabird avoidance measures in the BSAI and GOA groundfish 
hook-and-line fisheries are also available from the above address.

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. 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 halibut fishery 
regulations 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 BSAI and 
GOA hook-and-line groundfish fisheries (62 FR 10016, March 5, 1997; 62 
FR 23176, April 29, 1997), in the EA/RIR/FRFA prepared for that action, 
in the preamble to the proposed rule for this action (62 FR 65635, 
December 15, 1997), and in the EA/RIR/FRFA prepared for this 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 underscore 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.
    At its June 1997 meeting, the Council recommended extending the 
seabird avoidance requirements in the Alaska hook-and-line groundfish 
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 hook-and-line groundfish fisheries be exempt from some of the 
specified seabird avoidance measures.
    NMFS published a proposed rule in the Federal Register on December 
15, 1997 (62 FR 65635) that proposed seabird avoidance measures for the 
Pacific halibut fishery in U.S. Convention waters off Alaska. Public 
comment was invited through January 14, 1998. Two letters containing 
nine comments were received by the end of the comment period. One 
letter of six comments was received after the close of the public 
comment period and addressed two new issues that are addressed under 
the Response to Comments section.
    Pursuant to section 7 of the ESA, NMFS initiated a consultation on 
the Pacific halibut fishery and proposed regulatory measures to reduce 
seabird mortality in this fishery with the USFWS in April 1997. In 
October 1997, NMFS revised the Pacific halibut fishery consultation and 
initiated an informal consultation on the proposed regulatory measure 
to exempt vessels less than 26 ft (7.9 m) LOA using hook-and-line gear 
in the groundfish fisheries in the BSAI or GOA from some of the seabird 
avoidance measures. In January 1998, USFWS concluded the informal 
consultation and concurred with

[[Page 11162]]

NMFS's assessment that the proposed regulatory measures to reduce 
seabird mortality in the Pacific halibut fishery and the regulatory 
exemption for vessels less than 26 ft (7.9 m) LOA using hook-and-line 
gear in the groundfish fisheries in the BSAI or GOA or in the Pacific 
halibut fishery are not likely to adversely affect the short-tailed 
albatross. The consultation on the Pacific halibut fishery itself will 
be concluded prior to the commencement of the fishery in March 1998.

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

    After considering the public comments received, NMFS is 
implementing the following management measures designed to reduce the 
incidental mortality of seabirds. These measures apply to operators of 
vessels fishing with hook-and-line gear for Pacific halibut in U.S. 
Convention waters off Alaska. These measures are unchanged from those 
proposed in the Federal Register (62 FR 65635, December 15, 1997).
    1. All such operators must conduct fishing operations in the 
following manner:
    a. Use hooks that, when baited, sink as soon as they are put in the 
water. This can be accomplished by any means, including 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. 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 such operators of vessels greater than or equal to 26 ft 
(7.9 m) LOA must also employ one or more of the following seabird 
avoidance measures:
    a. Set gear between hours of nautical twilight 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 final rule also removes a regulation at 50 CFR 
679.24(e)(1)(ii) that effectively exempted 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 
is no longer appropriate.

Revision of Seabird Avoidance Gear and Methods in the Alaska 
Groundfish Hook-and-Line Fisheries

    This final rule revises the seabird avoidance gear and methods 
required to be employed by operators of vessels using hook-and-line 
gear in the groundfish fisheries in the BSAI and GOA to exempt 
operators of vessels less than 26 ft (7.9 m) LOA from the requirement 
to employ one or more of the measures set forth under 2., above. They 
are still required to comply with the measures set forth under 1., 
above.
    This final rule also revises the seabird bycatch avoidance 
regulations applicable to the BSAI and GOA groundfish fishery to 
clarify that NMFS intent is that, if offal is discharged while gear is 
being hauled, it must be discharged in a manner that distracts 
seabirds, to the extent practicable, from baited hooks. Some persons 
had misinterpreted the existing regulation as requiring offal to be 
discharged during the setting or hauling of gear. This was not NMFS' 
intent.
    These two revisions to the seabird avoidance regulations applicable 
to the BSAI and GOA groundfish fisheries make these regulations the 
same as the regulations applicable to the Pacific halibut fisheries in 
U.S. Convention waters.

Suggestions for Streamer Line Construction

    In response to public comment, NMFS reiterates suggestions for 
streamer line construction. Guidelines were published initially in the 
Federal Register on March 5, 1997 (62 FR 10016) and subsequently 
revised in the preamble to the final rule requiring seabird avoidance 
measures in the GOA and BSAI groundfish hook-and-line fisheries (62 FR 
23176, April 29, 1997).
    NMFS revised the guidelines on streamer line construction based on 
information that indicated 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) LOA deploying gear at approximately 5 knots may 
require a thicker dimension of streamer line (for example, 8 
millimeters (mm)), than smaller vessels of less than 125 ft (38.1 m) 
LOA that deploy gear at faster speeds of 7 to 8 knots and that may 
require streamer lines constructed of material only 5 mm in diameter. 
The following are the key characteristics of an effective streamer 
line:
    1. 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;
    2. 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;
    3. The height of the streamer line at the point of attachment is 4 
to 8 m above sea level;
    4. The streamer line for all vessel sizes is constructed of 
material that is between 5 and 8 mm in diameter;
    5. The length of streamer line is a minimum of 150 to 175 m for all 
vessel sizes;
    6. The number of streamers attached to a streamer line is 6 to 10 
pairs;
    7. The streamers are made of a heavy, flexible material to allow 
them to move freely and flop unpredictably (for example, streamer cord 
inserted inside a red polyurethane tubing);
    8. The streamer pairs are attached to the bird streamer line using 
a 3-way swivel or an adjustable snap;
    9. The 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. NMFS may propose that 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.

Evaluation of Effectiveness of Seabird Avoidance Measures

    For background information on this topic, see the preamble to the 
final rule requiring seabird avoidance measures in the GOA and BSAI 
groundfish hook-and-line fisheries (62 FR 23176, April 29, 1997). NMFS 
continues to endorse the testing of seabird avoidance measures used in 
the Alaska hook-and-line fisheries.
    In coordination with the USFWS, NMFS is developing a research plan 
to test the effectiveness of the required measures, as required by 
USFWS's Biological Opinion issued on February

[[Page 11163]]

19, 1997. Substantial progress has been made on the development of such 
a test plan in coordination with the USFWS. The test plan will test the 
effectiveness of seabird avoidance measures in two phases: (1) 
experimental tests of select measures, and (2) an observer phase that 
would apply the experimental results in the commercial fisheries. Given 
that very few experimental tests of seabird avoidance measures have 
occurred in the world (and none in Alaska), methodologies to be used in 
the experimental testing phase would first be developed in a pilot 
study. Implementation of either phase of the test plan is dependent 
upon the availability of adequate funding.
    When such tests have occurred and information is available as to 
the effectiveness and practicability of specific seabird avoidance 
measures in the Alaska hook-and-line fisheries, NMFS may revise the 
regulations to reflect such findings. Currently, no new information 
about the effectiveness of the regulations exists that would warrant 
NMFS revising the seabird avoidance measures at this time.

Response to Comments

    Comment 1. NMFS failed to promulgate seabird avoidance regulations 
in the Pacific halibut fishery in a timely fashion despite the 
recommendations of the Council at its December 1996 meeting.
    Response. NMFS disagrees. The Council's initial December 1996 
recommendations were directed at requiring seabird avoidance measures 
in the groundfish fisheries. Although, the Council indicated that 
similar measures were to be implemented for the Pacific halibut 
fishery, a target date was not specified. NMFS and the Council planned 
to initiate a separate rulemaking for the Pacific halibut fishery in 
order to allow the IPHC to first review the proposed measures. The 
Halibut Act 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 IPHC. The IPHC was provided 
an opportunity to review the proposed regulations at its January 1997 
meeting. After receiving IPHC concurrence in January, the Council took 
final action on proposed measures in the Pacific halibut fishery in 
June, 1997. Given the time required to prepare proposed and final 
rulemaking and allow for a public comment period, implementation has 
not been untimely.
    Comment 2. NMFS ignored every recommendation that was submitted by 
the environmental community in response to the proposed regulations for 
seabird avoidance measures in the Alaska groundfish hook-and-line 
fisheries. Those regulations and the proposed regulations for the 
Pacific halibut fishery deviate substantially from, and are weaker 
than, the Commission for the Conservation of Antarctic Marine Living 
Resources (CCAMLR) regulations that NMFS promulgated for the sub-
Antarctic seas (61 FR 8483, March 5, 1996). The CCAMLR regulations 
should be required in Alaska waters.
    Response. At this time, NMFS disagrees that the CCAMLR regulations 
should be required in Alaska waters. Given the similarities between the 
Alaska groundfish hook-and-line fisheries and the Pacific halibut 
fishery, NMFS proposed that the seabird avoidance measures required in 
the groundfish hook-and-line fisheries also be required in the Pacific 
halibut fishery. As stated in the preamble and in the ``Response to 
Comments'' section of the final rule requiring seabird avoidance 
measures in the Alaska groundfish hook-and-line fisheries (62 FR 23176, 
April 29, 1997), differences exist between the sub-Antarctic longline 
fisheries governed under the CCAMLR regulations and the Alaska hook-
and-line fisheries that warrant the differences in the regulations 
meant to reduce seabird bycatch. The differences between the sub-
Antarctic longline fisheries and the Alaska hook-and-line fisheries 
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 main line 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 from the side of the vessel at speeds of 
10 through 13 knots. The prevalent seabird species incidentally taken 
are albatrosses and petrels.
    In contrast, the Pacific halibut fishery targets halibut, a 
demersal species fished with bottom gear consisting of groundlines, 
usually 0.54 km long, with hooks attached to 1 to 1.5 m gangions spaced 
from 1.5 to 7 m apart along the groundline. In general, the vessels 
range in length from small skiffs in the several meter range to vessels 
of 20 through 30 m. Most vessels deploy gear from the stern at speeds 
of 5 to 7 knots. The prevalent seabird species incidentally taken in 
the Pacific halibut fishery have not been determined. Given that the 
halibut fishery occurs in much the same areas as the groundfish 
fisheries, the species most likely to be taken incidentally are fulmars 
and gulls in the BSAI, and fulmars and albatross in the GOA.
    Bottom gear used in the Pacific halibut fishery is designed to sink 
quickly to reach the bottom where fishing occurs. Traditionally, 
gangions have been tied to the groundline at a set spacing 
(``conventional'' gear), but, more recently, gangions have sometimes 
been attached to the groundline with a snap fastener (``snap-on'' 
gear). Conventional gear is set and retrieved as coils, while snap-on 
gear is set and retrieved on drums. Several groundline units, called 
skates, are strung together for a fishing unit, weighted with anchors 
attached to buoys and buoylines. Conventional gear is deployed off the 
stern over a chute that uses centrifugal force to straighten out the 
gangion and drop the bait away from the groundline to minimize tangles. 
Snap-on gear is deployed directly off the drum. With both types of 
bottom gear, the groundline and bait float for a few seconds before 
anchors (about 20 kg), and sometimes additional weights (0.5-2 kg) 
cause them to sink. Sinking rates vary with the vessel. Bottom gear is 
hauled amidships over a roller. 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. The predominant number of 
relatively small vessels in the Pacific halibut fishery (approximately 
2100 vessels, 7-30 m) raises safety concerns with night-setting of gear 
as required by CCAMLR regulations (approximately 15-30 vessels, 30-46 
m). The technical standards for streamer lines in CCAMLR regulations is 
not appropriate for the gear deployment speed used by the majority of 
the vessels in the Pacific halibut fishery. 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

[[Page 11164]]

 another (Duckworth, 1995; CCAMLR, 1996). CCAMLR has been refining 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, the primary author of ``Catching Fish Not Birds,'' and 
the CCAMLR publication ``Fish the Sea Not the Sky'' report that the 
most applicable solutions for preventing seabirds from taking baits 
depend on the vessel, its size, the crew, weather and sea conditions, 
and the time and place fishing occurs. Regulations for a particular 
fishery must take these factors into consideration. While certain of 
the CCAMLR regulations appear to be appropriate for the Pacific halibut 
fishery and are incorporated into this final rule, others may be 
implemented only if further investigation demonstrates their 
practicability in the Pacific halibut fishery.
    USFWS believes that implementation of the proposed measures is not 
likely to adversely affect the short-tailed albatross (USFWS, 1998). 
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. Testing the effectiveness of the required seabird 
avoidance measures will allow NMFS to better ascertain the 
effectiveness of these measures in the Alaska fisheries. NMFS continues 
to work with USFWS to develop an appropriate research plan, as 
discussed here. When such tests have occurred and information is 
available as to the effectiveness and practicability of specific 
seabird avoidance measures in the Alaska hook-and-line fisheries, NMFS 
may revise the regulations to reflect such findings.
    Comment 3. NMFS's proposed amendment to clarify the offal discharge 
requirement in the Alaska groundfish hook-and-line fisheries is an 
improvement. Nevertheless, the regulation adopted under CCAMLR is 
preferable because it prohibits the discharge of offal at any time 
while gear is being set and requires that the discharge of offal during 
the haul be avoided as far as possible. NMFS should require the same in 
Alaska waters.
    Response. NMFS agrees that the Alaska offal discharge regulation, 
as revised, is clearer. NMFS disagrees that the regulation should be 
replaced with the CCAMLR regulation. The CCAMLR regulation does not 
prohibit offal discharge as the commenter suggests. Rather, the CCAMLR 
regulation states that ``the dumping of offal shall be avoided as far 
as possible while longlines are being set or hauled; if discharge of 
offal is unavoidable, the discharge must take place on the opposite 
side of the vessel to that where longlines are set or hauled'' (61 FR 
8483, March 5, 1996). In practice, the Alaska regulation is very 
similar to the CCAMLR regulation. Under the Alaska regulation, offal 
must be discharged in a way that distracts seabirds from baited hooks 
(i.e., discharge must take place on the opposite side of the vessel to 
that where longlines are set or hauled). Furthermore, a recent study of 
the demersal longline fishery for toothfish (Dissostichus eleginoides) 
near the Kerguelen Islands in the South Indian Ocean has shown that the 
dumping of homogenized offal during gear deployment greatly reduced 
incidental capture of seabirds, because birds were more attracted to 
the offal than to baited hooks (Cherel et al., 1996). This finding is 
similar to comments provided by Alaska longliners during the comment 
period for the rule requiring seabird avoidance measures in the 
groundfish hook-and-line fisheries. For practical and safety reasons, 
offal discharge cannot be avoided by most of the vessels in the Pacific 
halibut fishery or in the Alaska groundfish fisheries. Most of the 
smaller vessels discharge offal while hauling gear. Some vessel 
operators have reported that discharging offal on the opposite side of 
the vessel from where gear is deployed distracts seabirds from the 
baited hooks, thus reducing the potential for seabirds getting hooked. 
Furthermore, some of the smaller vessels do not discharge offal at all 
while fishing, but retain whole fish.
    Comment 4. NMFS should not exempt vessels less than 26 ft (7.9 m) 
LOA from the required use of one or more of the measures specified at 
Sec. 679.24(e)(3). NMFS acknowledges that relatively little scientific 
information is available regarding the relationship of vessel size to 
seabird bycatch. No scientific or legal justification for this 
exemption exists, and the exemption might violate the incidental take 
permit and Biological Opinion from the USFWS for the short-tailed 
albatross.
    Response. NMFS is required by the Magnuson-Stevens Act to base all 
conservation and management measures upon the best scientific 
information available. The best scientific information that is 
available on this subject indicates that variations between vessels in 
the numbers of observed seabird catches appear to be related, at least 
in part, to the extent to which birds accumulate around vessels. This, 
in turn, is a function of the length of time that offal is discarded. 
Smaller vessels are not as attractive to scavenging seabirds as are 
larger vessels, which provide a continuous supply of food (Barnes et 
al., 1997). 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 of time and in 
small quantities (Barnes et al., 1997). This scientific information, in 
conjunction with information about the typical fishing practices of 
small vessels that was presented in the proposed rule (62 FR 65635), 
indicates that vessels of less than 26 ft (7.9 m) LOA are less likely 
to have a seabird bycatch problem than larger vessels. As noted in the 
response to comment 3, some of the smaller vessels do not discharge 
offal at all and are even less attractive to scavenging seabirds. In 
January 1998, USFWS concluded an informal consultation and concurred 
with NMFS's assessment that the proposed regulatory measures to reduce 
seabird mortality in the Pacific halibut fishery and the regulatory 
exemption for vessels less than 26 ft (7.9 m) LOA using hook-and-line 
gear in the groundfish fisheries in the BSAI or GOA or vessels less 
than 26 ft (7.9 m) LOA in the Pacific halibut fishery are not likely to 
adversely affect the short-tailed albatross (USFWS, 1998). Given that 
operators of vessels less than 26 ft (7.9 m) LOA using the proposed 
measures are not likely to adversely affect the short-tailed albatross, 
the incidental take limit established in the USFWS Biological Opinion 
for the BSAI and GOA groundfish hook-and-line fisheries applies to only 
vessels over 26 ft (7.9 m) LOA (USFWS, 1998).
    Comment 5. NMFS should require the mandatory use of bird streamer 
lines by vessels required to use seabird avoidance measures. The use of 
bird streamer lines should not be optional. The cost of streamer lines 
is not prohibitive, and there is no excuse for not requiring streamer 
lines for large vessels, particularly those that choose

[[Page 11165]]

not to install a lining tube due to the cost of refitting.
    Response. Until measures are scientifically tested in the Alaska 
hook-and-line fisheries, NMFS will continue to allow some flexibility 
in the application of seabird avoidance requirements. No scientific 
evidence exists to indicate that the required measures are not 
effective, and anecdotal information indicates that they are.
    Comment 6. Setting of longline gear at night or towing a ``buoy, 
board, stick, or other device'' are not sufficient alternatives to the 
proven efficacy of streamer lines.
    Response. As explained in the response to comment 5, no scientific 
evidence exists to indicate that the required measures are not 
effective, and anecdotal information indicates that they are. As 
explained in the response to comment 2, the most efficacious solutions 
for preventing seabirds from taking baits probably depend on 
circumstances relating to the vessel, its size, the crew, weather and 
sea conditions, and the time and place at which fishing occurs. Each of 
these factors must be considered when designing regulations for a 
particular fishery. Testing the effectiveness and practicability of the 
required seabird avoidance measures in Alaska hook-and-line fisheries 
must occur before definitive comparisons can be made among measures 
designed to reduce seabird bycatch in the Alaska hook-and-line 
fisheries. When such tests have occurred and information is available 
as to the effectiveness and practicability of specific seabird 
avoidance measures in the Alaska hook-and-line fisheries, NMFS may 
revise the regulations to reflect such findings. A research test plan 
to test the effectiveness of the required seabird avoidance measures is 
being developed in coordination with USFWS.
    Comment 7. To ensure that the bait sinks quickly, NMFS should 
require either that either thawed bait be used, or hooks or groundlines 
be weighted, or both.
    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 
are using thawed bait or weighted groundlines. Although the preamble of 
the proposed rule noted these methods, NMFS believes that specifying 
the methods by 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 halibut 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. Typically, the smaller halibut vessels use hand-baited gear, 
requiring that the bait is either thawed or partially thawed.
    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) the types of bait that sink 
faster, and (2) the use of weighted hooks on groundlines.
    The final rule establishes a performance standard for the Pacific 
halibut fishery 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 2) and given the limited amount of information available on 
their effectiveness, NMFS believes that fishermen must have some 
flexibility in meeting this performance standard.
    Comment 8. NMFS should require both the use of a bird streamer line 
and the nightsetting of gear.
    Response. As explained in the response to comment 2, 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 
final rule requires vessels to use more than one avoidance measure. 
Regulations at Sec. 679.24(e)(2)(i) and (ii) require seabird avoidance 
measures of all hook-and-line vessels fishing for Pacific halibut. 
Section 679.24(e)(2)(iii) requires that every reasonable effort be made 
to release alive seabirds brought on board. In addition, hook-and-line 
vessels that are greater than or equal to 26 ft (7.9 m) LOA must employ 
at least one of four additional seabird avoidance measures set forth at 
Sec. 679.24(e)(3)(i) through (e)(3)(iv). A vessel may use more than one 
of these measures at the same time.
    Moreover, setting at night may pose safety concerns for smaller 
vessels. Requiring mandatory night-setting may be neither practicable 
nor an effective seabird deterrent in the Pacific halibut fishery given 
that (1) 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) there are safety concerns are 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 be used or that gear be deployed at night 
(Murray et al., 1993). Concerns were raised that recommending that 
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 vessels, and night-setting was removed as a 
license requirement (Duckworth, 1995). Australia, another leading 
nation in seabird bycatch reduction 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 9. The proposed measure at Sec. 679.24(e)(3)(ii) should not 
specify towing a board or stick as a seabird avoidance measure.
    Response. NMFS believes that 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.

[[Page 11166]]

Depending on conditions, towing a buoy, board, stick, or other device 
may not be totally effective on its own, but combinations of solutions 
might significantly reduce seabird bycatch. As explained in the 
response to Comment 2, when tests have occurred and information is 
available as to the effectiveness and practicability of specific 
seabird avoidance measures in the Alaska hook-and-line fisheries, NMFS 
may revise the regulations to reflect such findings.
    Comment 10. A weakness of the proposed rule is its lack of 
guidelines for constructing an effective bird streamer line. The final 
rule should require the use of effectively designed and built streamer 
lines and set out guidelines for their construction, performance, and 
maintenance.
    Response. NMFS agrees that guidelines for constructing an effective 
bird streamer line should be provided. They are included in the 
preamble of this final rule.
    Comment 11. NMFS should be applauded for promulgating these 
regulations in an attempt to protect seabird populations in the North 
Pacific. However, the proposed rule should be strengthened in order to 
effectively reduce bycatch of the short-tailed albatross and other 
seabirds.
    Response. As explained in the response to comment 2, when tests 
have occurred and information is available as to the effectiveness and 
practicability of specific seabird avoidance measures in the Alaska 
hook-and-line fisheries, NMFS may revise the regulations to reflect 
such findings.

References

    Barnes, K.N., P.G. Ryan, and C. Boix-Hinzen. 1997. The Impact of 
the Hake Merluccius spp. Longline Fishery off South Africa on 
Procellariiform Seabirds. Biological Conservation 82: 227-234.
    Cherel, Y., H. Weimerskirch, and G. Duhamel. 1996. Interactions 
between Longline Vessels and Seabirds in Kerguelen Waters and a Method 
to Reduce Seabird Mortality. Biological Conservation 75: 63-70.
    CCAMLR. 1996. 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.
    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.
    IPHC. 1997. Draft FAO Longline Background Paper: Pacific Halibut.
    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.
    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.
    USFWS. 1998. Conclusion of Informal Consultation With NMFS on 
Proposed Rule Requiring Use of Seabird Deterrent Devices for Pacific 
Halibut Hook-and-line Fisheries with Regulatory Exemptions for Vessels 
Less Than 26 ft in the Pacific Halibut and BSAI and GOA Groundfish 
Hook-and-line Fisheries. USFWS communication to NMFS, January 12 and 
February 17.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    At the proposed rule stage, NMFS prepared an IRFA on this action. 
No comment were received on the IRFA. NMFS has prepared an FRFA, as 
part of the RIR, that describes the impact this rule would have on 
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 and NMFS assumes that most of these 1,935 vessels would 
be considered small entities. Based on the best available information, 
NMFS cannot predict how many small entities would be affected. 
Depending on what types of avoidance measures each vessel employs, any 
number of vessels ranging from zero to 1.935 could experience a 
reduction of greater than 5 percent in their annual gross annual 
incomes. Therefore, it is possible that this rule could have a 
significant negative economic impact on a substantial number of small 
entities.
    A number of alternatives to the rule which would have lessened the 
economic impact on small entities were considered and rejected. The no-
action alternative would not require any vessel, including small 
entities, to implement seabird avoidance measures in the Pacific 
halibut fishery, but this alternative would not have accomplished the 
Council's objective of limiting bycatch. In addition, very significant 
impacts on small entities could occur if closures were imposed due to 
the incidental take limit of short-tailed albatross being exceeded. The 
likelihood of this happening would be greater under the no-action 
alternative. Alternatives that addressed modifying reporting 
requirements for small entities were not considered by the Council, or 
in this analysis, because such alternatives would not reduce seabird 
interactions and would not mitigate the impacts of this action on small 
entities.
    Several aspects of this rule will minimize the economic effects 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 this 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). To provide maximum flexibility to participants in the 
fishery, a number of alternative measures to avoid seabird interaction 
are included in the rule as options from which a vessel operator may 
choose in deciding how to comply with this rule. Consequently, there 
are no additional alternatives that would mitigate the economic impact 
while achieving this action's purpose.
    The economic impacts of this 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

[[Page 11167]]

than 60 ft (18.3 m) that made halibut landings in 1996.
    Although this action could result in economic impacts on small 
entities, the no-action alternative could result in even more severe 
economic impacts. Failure to establish seabird avoidance measures 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 minimize the take of short-tailed 
albatross could be implemented, ranging from those in this rule to 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 takes of short-tailed 
albatross in excess of the incidental take authorized under the section 
7 consultation with the USFWS. A copy of the EA/RIR/FRFA is available 
from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 2, 1998.
David L. Evans,
Deputy 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., 1801 et seq., and 3631 et seq.

    2. In Sec. 679.24, paragraphs (e)(2)(iv) introductory text, and 
(e)(2)(iv)(A) through (e)(2)(iv)(D) are redesignated as paragraphs 
(e)(3) introductory text, and (e)(3)(i) through (e)(3)(iv), 
respectively, and paragraphs (e)(1), (e)(2)(ii), and newly designated 
paragraph (e)(3) introductory text 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) Requirements. * * *
    (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. 98-5834 Filed 3-5-98; 8:45 am]
BILLING CODE 3510-22-F