Federal Register: January 16, 2009 (Volume 74, Number 11)
DOCID: fr16ja09-49 FR Doc E9-974
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
CFR Citation: 50 CFR Part 679
Docket ID: [Docket No. 080612764-8801-01]
RIN ID: RIN 0648-AW94
NOTICE: PROPOSED RULES
DOCID: fr16ja09-49
ACTION: Fisheries of the Exclusive Economic Zone Off Alaska:
DOCUMENT ACTION: Proposed rule; request for comments.
SUBJECT CATEGORY:
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska, Seabird Avoidance Requirements Revisions for International Pacific Halibut Commission Regulatory Area 4E
DATES: Written comments must be received by February 17, 2009.
DOCUMENT SUMMARY:
NMFS issues a proposed rule that would revise the seabird avoidance requirements for the hookandline groundfish and halibut fisheries in International Pacific Halibut Commission Area 4E. The proposed rule would eliminate seabird avoidance requirements for hook andline vessels less than or equal to 55 ft (16.8 m) length overall in portions of Area 4E in the eastern Bering Sea. This action is necessary to revise seabird avoidance measures based on the latest scientific information and to reduce unnecessary regulatory burdens and associated costs.
SUMMARY:
Groundfish Fisheries of the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska, Seabird Avoidance Requirements Revisions, etc.,
SUPPLEMENTAL INFORMATION
The groundfish fisheries in the exclusive economic zone (EEZ) off Alaska are managed under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act), 16 U.S.C. 1801, et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.
Management of the Pacific halibut fisheries in and off Alaska is governed by an international agreement between Canada and the United States. This agreement, entitled the ``Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea'' (Convention), was signed at Ottawa, Canada, on March 2, 1953, and was amended by the ``Protocol Amending the Convention,'' signed at Washington, D.C., March 29, 1979. The Convention is implemented in the United States by the Northern Pacific Halibut Act of 1982 (Halibut Act). The directed commercial Pacific halibut fishery in Alaska is managed under an individual fishing quota (IFQ) program, as is the fixed gear sablefish fishery. The IFQ Program is a limited access management system. This program is codified at 50 CFR part 679.
Background
The purpose of this proposed action is to revise the seabird avoidance measures currently implemented for the hookandline groundfish and halibut fisheries based on the best available information regarding seabird occurrence and potential fishing vessel interactions. Seabird avoidance measures reduce the incidental mortality of seabirds in the hookandline fisheries off Alaska. Since 1997, NMFS has implemented and revised seabird avoidance measures to mitigate interactions between the federal hookandline fisheries and seabirds (62 FR 23176, April 29, 1997; 63 FR 11161, March 6, 1998; 69 FR 1930, January 13, 2004; and 72 FR 71601, December 18, 2007).
NMFS compiled seabird sightings data from the following sources:
from 19882004 records from seabird observers on the U.S. Fish and
Wildlife Service's (FWS) research vessel M/V TIGLAX; from incidental
sightings by biologists, fishermen, seamen, fisheries observers, and
birdwatchers provided to the FWS; from the International Pacific
Halibut Commission (IPHC); from the Alaska Natural Heritage Program;
from historical sightings documented in published literature; from
satellite tagging data; and from the North Pacific Pelagic Seabird
Database. The EA/RIR/IRFA for this action describes this information
(see ADDRESSES). This information showed that seabird species of
concern are not likely to occur in portions of Area 4E where fishing
vessels using hookandline gear may operate; and therefore, it is not
likely that interactions between the fishing vessels and these seabird
species of concern would occur in those portions of Area 4E. Thus, the
Council recommended revisions to the seabird avoidance measures in a
portion of Area 4E. These revisions would eliminate seabird avoidance
measures in the portion of Area 4E where seabird species of concern are
not likely to occur. The revisions would apply to vessels greater than
26 ft (7.9 m) to less than or equal to 55 ft (16.8 m) length overall
(LOA) fishing in the EEZ. Vessels less than or equal to 26 ft (7.9 m)
LOA are not required to use seabird avoidance measures. Vessels greater
than 55 ft (16.8 m) LOA would continue to be required to use seabird
avoidance measures in all of Area 4E. Vessels this size and larger are
more likely to interact with other seabirds because of the greater
amount of offal discharge and greater number of hooks fished [[Page 2985]]
compared to smaller vessels. Vessels greater than 55 ft (16.8 m) LOA
are capable of efficiently deploying seabird avoidance gear, as further discussed in the Classification section.
Species of concern of pelagic seabirds (particularly the Endangered
Species Act (ESA)listed shorttailed albatross) are rarely observed in
most of Area 4E; and therefore, are not likely to interact with hook
andline fisheries in most of this area (Figure 1). Pelagic seabird
species of concern that may interact with hookandline vessels have
been observed and documented in the southern portion of Area 4E west of
Bristol Bay. The seabird avoidance measures would continue to be
required in this area for all hookandline vessels greater than 26 feet (7.9 m) LOA.
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Eliminating unnecessary seabird avoidance measures is intended to remove associated economic burdens on affected vessels. These revisions are the result of adaptive management using the best available information to focus regulatory requirements where they are needed. Research results and the environmental and economic considerations of the proposed action are summarized in the EA/RIR/IRFA for this action (see ADDRESSES).
Proposed Regulatory Amendments
In June 2008, the Council unanimously recommended revisions to the seabird avoidance measures in a portion of Area 4E. These measures would apply to operators of vessels fishing for Pacific halibut in the IFQ and Community Development Quota (CDQ) management programs in waters from 0 nm to 200 nm; for IFQ sablefish in waters from 0 nm to 200 nm; and for groundfish with hookandline gear in the EEZ.
The proposed rule to implement the Council's recommendations would reorganize and revise Sec. 679.24(e)(3) and Table 20 to part 679 to clarify existing regulatory text and to eliminate unnecessary seabird avoidance gear requirements for all hookandline vessels less than or equal to 55 ft (16.8 m) LOA fishing in Area 4E, except in the southern portion of Area 4E as shown in Figure 1. Hookandline vessels fishing in the portion of Area 4E south of 60 degrees N latitude and west of 160 degrees W longitude would continue to be required to use seabird avoidance measures. The best available scientific information regarding seabird observations in the Area 4E indicates that ESAlisted seabirds and other seabird species of concern are not likely to occur in Area 4E, except for the southern portion where seabird avoidance measures would continue to be required. Therefore, the proposed rule would eliminate seabird avoidance measures where interactions with seabird species of concern is not likely to occur and ensure that such measures are used in waters where interactions with seabird species of concern are likely to occur.
Table 19 to part 679 also would be revised to correct cross references. Under the descriptions for the seabird avoidance gear and other methods, the reference to Sec. 679.24(e)(5) would be corrected to read Sec. 679.24(e)(4).
Classification
Pursuant to section 304(b)(1)(A) of the MagnusonStevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the MagnusonStevens Act, the Halibut Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An IRFA was prepared as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
The vessels that fish for groundfish or halibut with hookandline gear in the waters off Alaska would be directly regulated by the proposed action. The seabird avoidance measures presently in place, and the alternatives and options considered, apply directly to the operator of a vessel deploying hookandline gear in the waters off Alaska. These regulations apply to the operation of a vessel and not directly to the halibut or sablefish IFQholder unless the holder is also the owner/operator of a vessel. Multiple IFQs may be used on a single vessel. Thus, the IRFA analysis of large and small entities is conducted at the vessel level and not the IFQ level. This analysis is complicated by the fact that the halibut fishery is managed somewhat separately from the Federal groundfish fisheries, resulting in multiple data sources being synthesized for the analysis. Thus, data from multiple sources and years have been used to estimate the numbers of large and small entities.
Approximately 70 vessels ranging between 26 ft (7.9 m) and 55 ft (16.8 m) LOA, participated in the CDQ Pacific halibut fishery in Area 4E. The 70 vessels that fished in the CDQ halibut fishery in Area 4E are mostly small vessels, 66 are less than 33 ft (10.1 m) LOA. These small vessels fish in the salmon and herring fisheries in the Bristol Bay and Togiak Bay areas of Alaska. None of the 70 vessels harvest groundfish in other Federal fisheries; thus, comprehensive annual revenue data are not available for these vessels in the way that they are for vessels that participate in Federal groundfish fisheries. However, given the small size of these vessels and the small scale of the fisheries they participate in, it is not expected that any of these vessels would earn more than $4 million in annual revenue. Thus, these 70 vessels are believed to be small entities, as defined by Small Business Administration criteria.
Comprehensive annual revenue data, from all sources, are available for the 92 vessels that participated in the Federal hookandline groundfish fisheries in the Bering Sea and Aleutian Islands management area in 2006. In 2006, 52 hook and line catcher vessels (CVs) and 6 hookandline catcher processors (CPs) reported that they caught and processed less than $4 million in gross exvessel or gross first wholesale product value. Thus, these 58 vessels are considered small entities.
In total, this analysis has identified 128 vessels that are believed to be directly regulated small entities. A review of American Fisheries Act (AFA) permit data revealed that none of the 128 vessels with gross revenue less than $4 million in 2006 are AFApermitted vessels. Because AFA affiliations are relatively stable across years, none of these vessels are large because of AFA affiliations.
The IRFA indicates that this proposed action is not likely to impose significant costs on directly regulated small entities. The action reduces the regulatory burden on hookandline vessels 55 ft (16.8 m) LOA or less by eliminating all seabird avoidance requirements for these vessels operating in portions of Area 4E. The reduced regulatory burden under the proposed action would tend to reduce the costs for the directly regulated vessels. Vessel operational cost of production data are not presently collected, making it impossible to quantify the net effect on operational costs that might occur under each alternative and option.
Since the initial adoption of seabird avoidance regulations, research has been conducted to more precisely identify the geographical distribution and range of seabirds of concern, and on the efficacy of required seabird avoidance devices. Recent research has shown the likely locations of interaction between seabirds of concern and fishing vessels in Area 4E and has provided the information necessary to identify waters where seabird avoidance measures may not be necessary. The proposed action, which is intended to reduce the economic burden placed on small entities operating in these fisheries, is a direct result of this research.
An IRFA must describe any significant alternatives to the proposed
rule that accomplish the stated objectives of the proposed action,
consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule
[[Page 2988]]
on small entities. Including status quo, this proposed action has four alternatives and two options.
Alternative 1 is the status quo, which would require the continued use of seabird avoidance measures for all hookandline vessels fishing for groundfish or halibut in the federal waters of Area 4E. This alternative would not provide economic relief; and therefore, does not meet the objectives of this action.
Alternative 2 would exempt hookandline vessels 26 ft (7.9 m) to 32 ft (9.8 m) LOA from seabird avoidance measures while fishing for groundfish or halibut in Area 4E. This alternative would provide economic relief to only vessels in this size class, partially meeting the objectives of the action for the hookandline fleet.
Alternative 3 (preferred) would exempt hookandline vessels 26 ft (7.9 m) to 55 ft (16.8 m) LOA from seabird avoidance measures while fishing for groundfish or halibut in Area 4E. This alternative would provide more economic relief to the hookandline fleet than Alternatives 1 and 2.
Alternative 4 would exempt all hookandline vessels from seabird avoidance measures while fishing for groundfish or halibut in Area 4E. This alternative would provide the most economic relief to the hook andline fleet compared to the other alternatives, but the economic relief in comparison to Alternative 3 is not likely a large difference. Very few vessels over 55 ft (16.8 m) LOA participate in the hookand line fishery in Area 4E, and the larger vessels have the capability to use seabird avoidance gear based on larger deck space, adequate superstructure, and available crew.
Two options were also considered for this action. Option 1 (preferred) would require full compliance with the seabird avoidance measures inside the shaded portion of Area 4E, as shown in Figure 1, while option 2 would require only the use of a buoy bag in the shaded area. Option 1 would require more costs to deploy seabird avoidance gear that meets the streamer standards than option 2, which required a buoy bag with no standards and no supporting superstructure for streamer lines. Because the buoy bag is not likely as effective as the streamer lines, option 1 is more protective of shorttailed albatross and other seabirds that may occur in the shaded area shown in Figure 1.
The preferred action is Alternative 3 with option 1, which provides more economic relief than Alternatives 1 or 2 with option 1. Alternative 3 and option 1 were selected because most of the vessels participating in the hookandline fishery in Area 4E are less than 55 ft (16.8 m) LOA. The use of seabird avoidance gear on these vessels can be difficult because of limited deck space for the gear or the lack of superstructure to support the streamer lines. Smaller vessels also are likely to have fewer crew members available to handle the gear. Only Alternative 4 has smaller economic impacts on the directly regulated small entities than Alternative 3. Because very few large vessels participate in the Area 4E fishery, Alternative 4 is not likely to provide much more economic relief than Alternative 3. Alternative 4 was not chosen because larger vessels are more likely to have adequate deck space, superstructure, and crew available to allow for safe and effective use of seabird avoidance gear. Because of the presence of shorttailed albatross in the shaded area of Figure 1, the Council recommended option 1 for vessels fishing in this area to ensure the continued protection of shorttailed albatross from potential incidental takes by any hookandline vessel. Option 1 has a marginally greater potential adverse economic impact on directly regulated small entities than does option 2, but option 1 more fully achieves the objectives of the proposed action and is necessary for the protection of shorttailed albatross and other seabirds that may occur in the shaded area of Figure 1, making it more compliant with other applicable law (e.g., ESA).
No Federal rules duplicate, overlap, or conflict with the proposed action.
An informal consultation with the FWS under the Endangered Species Act was concluded for this proposed action on September 15, 2008. As a result of the informal consultation, NMFS determined that fishing activities under this rule are not likely to adversely affect endangered or threatened species or their designated critical habitat. The FWS concurred with this determination.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: January 12, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:
PART 679FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 is revised to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108 447.
2. In Sec. 679.24, redesignate paragraphs (e)(3)(i) and (e)(3)(ii)
as paragraphs (e)(3)(ii) and (e)(3)(iii), respectively; add new
paragraph (e)(3)(i); and revise paragraph (e)(3) introductory text to read as follows:
Sec. 679.24 Gear limitations.
* * * * *
(e) * * *
(3) Seabird avoidance gear requirements. (See also Table 20 to this part.)
(i) The operator of a vessel identified in paragraph (e)(1) of this
section must comply with paragraph (e)(3)(ii) or (e)(3)(iii) of this
section while fishing with hookandline gear for groundfish, IFQ
halibut, CDQ halibut, or IFQ sablefish in Federal waters (EEZ) and for
IFQ halibut, CDQ halibut, or IFQ sablefish in the State of Alaska waters, excluding fishing in
(A) NMFS Reporting Area 649 (Prince William Sound);
(B) State waters of Cook Inlet;
(C) NMFS Reporting Area 659 (Eastern GOA Regulatory Area; Southeast
Inside District), but including waters in the areas south of a straight
line at 56[deg]17.25 N. lat. between Point Harris and Port Armstrong in
Chatham Strait, State statistical areas 325431 and 325401, and west of
a straight line at 136[deg]21.17 E. long. from Point Wimbledon
extending south through the Inian Islands to Point Lavinia; and
(D) Area 4E with a vessel less than or equal to 55 ft (16.8 m) LOA,
but including fishing in waters south of 60[deg]00.00 N. lat. and west of 160[deg]00.00 W. long.
* * * * *
3. Tables 19 and 20 to part 679 are revised to read as follows: [[Page 2989]]
Table 19 to Part 679Seabird Avoidance Gear Codes VESSEL LOGBOOK
SEABIRD AVOIDANCE GEAR OR
CODE METHOD.
1 Paired Streamer Lines: Used
during deployment of hook
andline gear to prevent
birds from taking hooks.
Two streamer lines used,
one on each side of the
main groundline. Each
streamer line consists of
three components: a length
of line, streamers
attached along a portion
of the length and one or
more float devices at the
terminal end. See
performance and material
standards at Sec.
679.24(e)(4)(iii).
2 Single Streamer Line: Used
during deployment of hook
andline gear to prevent
birds from taking hooks.
The streamer line consists
of three components: a
length of line, streamers
attached along a portion
of the length and one or
more float devices at the
terminal end. See
performance and material
standards at Sec.
679.24(e)(4)(ii).
3 Single Streamer Line, used
with Snap Gear: Used
during the deployment of
snap gear to prevent birds
from taking hooks. The
streamer line consists of
three components: a length
of line, streamers
attached along a portion
of the length and one or
more float devices at the
terminal end. See
performance and material
standards at Sec.
679.24(e)(4)(iv).
4 Buoy Bag Line: Used during
the deployment of hookand
line gear to prevent birds
from taking hooks. A buoy
bag line consists of two
components: a length of
line (without streamers
attached) and one or more
float devices at the
terminal end. See
performance and material
standards at Sec.
679.24(e)(4)(i).
Other Device used in conjunction with Single Streamer Line or Buoy Bag Line
5 Add weights to groundline:
Applying weights to the
groundline for the purpose
of sinking the hookand
line gear more quickly and
preventing seabirds from
accessing the baited hooks.
6 Additional Buoy Bag Line or
Single Streamer Line:
Using a second buoy bag
line or streamer line for
the purpose of enhancing
the effectiveness of these
deterrent devices at
preventing seabirds from
accessing baited hooks.
7 Strategic Offal Discharge:
Discharging fish, fish
parts (i.e., offal) or
spent bait for the purpose
of distracting seabirds
away from the main
groundline while setting gear.
Additional Device Used
8 Night Fishing: Setting hook
andline gear during dark
(night time hours).
Line Shooter: A hydraulic
device designed to deploy
hookandline gear at a
speed slightly faster than
the vessel's speed during setting.
Lining Tube: A device used
to deploy hookandline
gear through an underwater
setting device.
Other (Describe)
9 No Deterrent Used Due to
Weather. [See weather
exceptions at Sec.
679.24(e)(4)(i),
(e)(4)(ii)(B),
(e)(4)(iii)(B),
(e)(4)(iv)(B), and (e)(4)(v).]
0 No Deterrent Used.
Table 20 to Part 679Seabird Avoidance Gear Requirements for Vessels, based on Area, Gear, and Vessel Type
(See Sec. 679.24(e) for complete seabird avoidance program
requirements; see Sec. 679.24(e)(1) for applicable fisheries.)
If you operate a vessel deploying hookand then you must use this
line gear, other than snap gear, in waters seabird avoidance gear in
specified at Sec. 679.24(e)(3), and your conjunction with
vessel is... requirements at Sec. 679.24(e)...
>26 ft to 55 ft LOA and without masts, minimum of one buoy bag poles, or rigging line
>26 ft to 55 ft LOA and with masts, poles, minimum of a single
or rigging streamer line of a
standard specified at Sec.
679.24(e)(4)(ii)
>55 ft LOA minimum of paired streamer
lines of a standard
specified at Sec.
679.24(e)(4)(iii)
If you operate a vessel deploying hookand then you must use this
line gear and use snap gear in waters seabird avoidance gear in
specified at Sec. 679.24(e)(3), and your conjunction with
vessel is... requirements at Sec. 679.24(e)...
>26 ft to 55 ft LOA and without masts, minimum of one buoy bag poles, or rigging line
>26 ft to 55 ft and with masts, poles, or minimum of a single
rigging streamer line of a
standard specified at Sec.
679.24(e)(4)(iv)
>55 ft LOA minimum of a single
streamer line of a
standard specified at Sec.
679.24(e)(4)(iv) If you operate any of the following hook then...
andline vessels...
< 32 ft in the State waters of IPHC Area 4E you are exempt from seabird
avoidance measures.
in NMFS Reporting Area 649 (Prince William ........................... Sound)
in State waters of Cook Inlet ........................... [[Page 2990]]
in NMFS Reporting Area 659 (Eastern GOA ........................... Regulatory Area, Southeast Inside
District), but not including waters in the
areas south of a straight line at
56[deg]17.25 N. lat. between Point Harris
and Port Armstrong in Chatham Strait,
State statistical areas 325431 and 325401,
and west of a straight line at
136[deg]21.17 E. long. from Point
Wimbledon extending south through the
Inian Islands to Point Lavinia
<= 55 ft in IPHC Area 4E but not including ........................... waters south of 60[deg]00.00 N. lat. and
west of 160[deg]00.00 W. long.
[FR Doc. E9974 Filed 11509; 8:45 am]
BILLING CODE 351022S
FOR FURTHER INFORMATION CONTACT
Melanie Brown, 907-586-7228.