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, 13355-13359 [E9-6894]
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Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations
DEPARTMENT OF COMMERCE
Region NMFS website at http://
www.alaska fisheries.noaa.gov.
National Oceanic and Atmospheric
Administration
FOR FURTHER INFORMATION CONTACT:
Melanie Brown, 907–586–7228.
SUPPLEMENTARY 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 Magnuson–Stevens
Fishery Conservation and Management
Act (Magnuson–Stevens 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.
50 CFR Part 679
[Docket No. 080612764–9304–02]
RIN 0648–AW94
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
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
NMFS issues a final rule that
revises the seabird avoidance
requirements for the hook–and–line
groundfish and halibut fisheries in
International Pacific Halibut
Commission Area 4E. The final rule
eliminates seabird avoidance
requirements for hook–and–line 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.
DATES: Effective April 27, 2009.
ADDRESSES: Copies of the map of the
seabird avoidance measures in Area 4E,
and the Environmental Assessment/
Regulatory Impact Review/Final
Regulatory Flexibility Analysis (EA/
RIR/FRFA) for this action may be
obtained from NMFS Alaska Region,
P.O. Box 21668, Juneau, AK 99802,
Attn: Ellen Sebastian or from the Alaska
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SUMMARY:
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Background
The purpose of this action is to revise
the seabird avoidance measures
currently implemented for the hook–
and–line groundfish and halibut
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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 hook–and–
line fisheries off Alaska. Since 1997,
NMFS has implemented and revised
seabird avoidance measures to mitigate
interactions between the federal hook–
and–line 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).
A detailed description of the
information used to support this action,
map of the area, and the reasons for the
specific details of the regulatory
amendments are in the proposed rule
(74 FR 2984, January 16, 2009). The map
is reproduced in this rule (See Figure 1).
Regulatory Amendments
In June 2008, the Council
unanimously recommended revisions to
the seabird avoidance measures in a
portion of Area 4E. These measures
apply to operators of vessels using
hook–and–line gear 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 in the
EEZ.
This final rule reorganizes and revises
§ 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
hook–and–line 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. Hook–
and–line vessels fishing in the portion
of Area 4E south of 60 degrees N
latitude and west of 160 degrees W
longitude continue to be required to use
seabird avoidance measures.
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Figure 1. International Pacific Halibut
Commission Regulatory Area 4E is shown as
the striated area.
Notes: Hook–and–line vessels > 26 ft (7.9
m) LOA fishing in the shaded portion of the
striated area are required to continue using
seabird avoidance measures. In the striated
area of Area 4E, vessels > 26 ft (7.9 m) to 55
ft (16.8 m) are exempt from seabird
avoidance measures, and vessels > 55 ft (16.8
m) continue to use seabird avoidance
measures. Vessels ≤ 26 ft (7.9 m) continue to
be exempt from seabird avoidance measures
throughout all of Area 4E.
descriptions for the seabird avoidance
gear and other methods, the reference to
§ 679.24(e)(5) is corrected to read
§ 679.24(e)(4).
The best available scientific
information regarding seabird
observations in the Area 4E indicates
that ESA–listed seabirds and other
seabird species of concern are not likely
to occur in Area 4E, except for the
southern portion where seabird
avoidance measures continue to be
required. Therefore, the final rule
eliminates seabird avoidance measures
where interactions with seabird species
of concern are not likely to occur and
ensures that such measures are used in
waters where interactions with seabird
species of concern are likely to occur.
Table 19 to part 679 also is revised to
correct cross references. Under the
Classification
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Comments and Responses
NMFS received no comments on the
proposed rule (74 FR 2984, January 16,
2009). No substantive changes were
made in the final rule from the proposed
rule. Minor editorial changes were made
to Tables 19 and 20 and to
§ 679.24(e)(3)(i).
The Administrator, Alaska Region,
NMFS, determined that the final rule is
necessary for the conservation and
management of the groundfish fisheries
and that it is consistent with the
Magnuson–Stevens Act, the Halibut Act,
and other applicable laws.
This final rule has been determined to
be not significant for the purposes of
Executive Order 12866.
A final regulatory flexibility analysis
(FRFA) was prepared. The FRFA
describes the economic impact of this
final rule on small entities. The FRFA
incorporates the initial regulatory
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flexibility analysis (IRFA), a summary of
the significant issues raised by the
public comments in response to the
IRFA, NMFS’ responses to those
comments, and a summary of the
analyses completed to support the
action. Descriptions of the action, the
reasons it is under consideration, and its
objectives and legal basis are included
earlier in the preamble and in the
SUMMARY section of the preamble. A
copy of the FRFA is available from
NMFS (see ADDRESSES).
The IRFA was described in the
classification section to the proposed
rule (74 FR 2984, January 16, 2009), and
the public was notified of how to obtain
a copy of the IRFA. The public comment
period ended on February 17, 2009. No
comments were received on the IRFA or
on the economic impacts of the rule.
The vessels that fish for groundfish or
halibut with hook–and–line gear in the
waters off Alaska would be directly
regulated by this action. The seabird
avoidance measures presently in place,
and the alternatives and options
considered, apply directly to the
operator of a vessel deploying hook–
and–line gear in the waters off Alaska.
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These regulations apply to the operation
of a vessel and not directly to the
halibut or sablefish IFQ–holder 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
hook–and–line groundfish fisheries in
the Bering Sea and Aleutian Islands
management area in 2006. In 2006, 52
hook and line catcher vessels (CVs) and
6 hook–and–line catcher processors
(CPs) reported that they caught and
processed less than $4 million in gross
ex–vessel 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 AFA–permitted
vessels. Because AFA affiliations are
relatively stable across years, none of
these vessels are large because of AFA
affiliations.
This regulation does not impose new
recordkeeping and reporting
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requirements on the regulated small
entities.
The FRFA did not reveal any Federal
rules that duplicate, overlap, or conflict
with the action.
The Council considered four
alternatives and two options for this
action. Alternative 1 is the status quo,
which would require the continued use
of seabird avoidance measures for all
hook–and–line 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 hook–
and–line 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 only to
vessels in this size class, partially
meeting the objectives of the action for
the hook–and–line fleet.
Alternative 3 (preferred) exempts
hook–and–line 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 provides more economic
relief to the hook–and–line fleet than
Alternatives 1 and 2.
Alternative 4 would exempt all hook–
and–line 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–and–line 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 hook–and–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) requires
full compliance with the seabird
avoidance measures inside the shaded
portion of Area 4E, as shown in Figure
1 of the proposed rule (74 FR 2984,
January 16, 2009), 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 short–tailed
albatross and other seabirds that may
occur in the shaded area shown in
Figure 1.
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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 hook–and–
line 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 short–tailed 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 short–tailed
albatross from potential incidental takes
by any hook–and–line 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 action and
is necessary for the protection of short–
tailed albatross and other seabirds that
may occur in the shaded area of Figure
1 of the proposed rule, making it more
compliant with other applicable law
(e.g., Endangered Species Act).
Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, NMFS Alaska
Region has developed a website that
provides easy access to details of this
final rule, including links to the final
rule, sources for seabird avoidance gear,
and a history of seabird avoidance
measures in the Alaska fisheries. The
relevant information available on the
website is the Small Entity Compliance
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Guide. The website address is http://
www.fakr.noaa.gov/protectedresources/
seabirds.htm. Copies of this final rule
are available upon request from the
NMFS, Alaska Regional Office (see
ADDRESSES).
An informal consultation with the U.
S. Fish and Wildlife Service (FWS)
under the Endangered Species Act was
concluded for this 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.
(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°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°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°00.00 N. lat. and west of 160°00.00
W. long.
*
*
*
*
*
3. Tables 19 and 20 to part 679 are
revised to read as follows:
CODE
1
PART 679—FISHERIES OF THE
EXCLUSIVE ECONOMIC ZONE OFF
ALASKA
1. The authority citation for part 679
continues to read as follows:
■
Authority: 16 U.S.C. 773 et seq.; 1801 et
seq.; 3631 et seq.; Pub. L. 108 447.
2. In § 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:
■
2
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 hook–and–line 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);
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4
SEABIRD AVOIDANCE GEAR
OR METHOD.
Buoy Bag Line: Used during the
deployment of hook–and–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
§ 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 hook–
and–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.
VESSEL LOGBOOK
For reasons set out in the preamble,
NMFS amends 50 CFR part 679 as
follows:
15:28 Mar 26, 2009
CODE
TABLE 19 TO PART 679—SEABIRD
AVOIDANCE GEAR CODES
■
VerDate Nov<24>2008
VESSEL LOGBOOK
■
Dated: March 23, 2009.
John Oliver
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
§ 679.24
TABLE 19 TO PART 679—SEABIRD
AVOIDANCE GEAR CODES—Continued
3
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SEABIRD AVOIDANCE GEAR
OR METHOD.
Paired Streamer Lines: Used during deployment of hook–and–line
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
§ 679.24(e)(4)(iii).
Single Streamer Line: Used during
deployment of hook–and–line 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 § 679.24(e)(4)(ii).
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 § 679.24(e)(4)(iv).
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Additional Device Used
8
Night Fishing: Setting hook–and–
line gear during dark (night time
hours).
Line Shooter: A hydraulic device
designed to deploy hook–and–line
gear at a speed slightly faster
than the vessel’s speed during
setting.
Lining Tube: A device used to deploy hook–and–line gear through
an underwater–setting device.
Other (Describe)
9
No Deterrent Used Due to Weather. [See weather exceptions at
§ 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.
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13359
TABLE 20 TO PART 679—SEABIRD AVOIDANCE GEAR REQUIREMENTS FOR VESSELS, BASED ON AREA, GEAR, AND VESSEL
TYPE
(See § 679.24(e) for complete seabird avoidance program requirements; see § 679.24(e)(1) for applicable fisheries.)
If you operate a vessel deploying hook–and–line gear, other than
snap gear, in waters specified at § 679.24(e)(3), and your vessel
is...
then you must use this seabird avoidance gear in conjunction
with requirements at § 679.24(e)...
>26 ft to 55 ft LOA and without masts, poles, or rigging
minimum of one buoy bag line
>26 ft to 55 ft LOA and with masts, poles, or rigging
minimum of a single streamer line of a standard specified at
§ 679.24(e)(4)(ii)
>55 ft LOA
minimum of paired streamer lines of a standard specified at
§ 679.24(e)(4)(iii)
If you operate a vessel deploying hook–and–line gear and use
snap gear in waters specified at § 679.24(e)(3), and your vessel
is...
then you must use this seabird avoidance gear in conjunction
with requirements at § 679.24(e)...
>26 ft to 55 ft LOA and without masts, poles, or rigging
minimum of one buoy bag line
>26 ft to 55 ft LOA and with masts, poles, or rigging
minimum of a single streamer line of a standard specified at
§ 679.24(e)(4)(iv)
>55 ft LOA
minimum of a single streamer line of a standard specified at
§ 679.24(e)(4)(iv)
If you operate any of the following hook–and–line vessels...
then...
< 32 ft LOA 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
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°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°21.17 E. long. from Point
Wimbledon extending south through the Inian Islands to Point
Lavinia
≤ 55 ft LOA in IPHC Area 4E but not including waters south of
60°00.00 N. lat. and west of 160°00.00 W. long.
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Agencies
[Federal Register Volume 74, Number 58 (Friday, March 27, 2009)]
[Rules and Regulations]
[Pages 13355-13359]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-6894]
[[Page 13355]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 080612764-9304-02]
RIN 0648-AW94
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
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a final rule that revises the seabird avoidance
requirements for the hook-and-line groundfish and halibut fisheries in
International Pacific Halibut Commission Area 4E. The final rule
eliminates seabird avoidance requirements for hook-and-line 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.
DATES: Effective April 27, 2009.
ADDRESSES: Copies of the map of the seabird avoidance measures in Area
4E, and the Environmental Assessment/Regulatory Impact Review/Final
Regulatory Flexibility Analysis (EA/RIR/FRFA) for this action may be
obtained from NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802,
Attn: Ellen Sebastian or from the Alaska Region NMFS website at http://www.alaska fisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.
SUPPLEMENTARY 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 Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens 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 action is to revise the seabird avoidance
measures currently implemented for the hook-and-line 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
hook-and-line fisheries off Alaska. Since 1997, NMFS has implemented
and revised seabird avoidance measures to mitigate interactions between
the federal hook-and-line 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).
A detailed description of the information used to support this
action, map of the area, and the reasons for the specific details of
the regulatory amendments are in the proposed rule (74 FR 2984, January
16, 2009). The map is reproduced in this rule (See Figure 1).
Regulatory Amendments
In June 2008, the Council unanimously recommended revisions to the
seabird avoidance measures in a portion of Area 4E. These measures
apply to operators of vessels using hook-and-line gear 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 in the EEZ.
This final rule reorganizes and revises 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 hook-
and-line 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. Hook-and-line vessels fishing in the portion of Area 4E south of 60
degrees N latitude and west of 160 degrees W longitude continue to be
required to use seabird avoidance measures.
[[Page 13356]]
[GRAPHIC] [TIFF OMITTED] TR27MR09.414
Figure 1. International Pacific Halibut Commission Regulatory Area
4E is shown as the striated area.
Notes: Hook-and-line vessels > 26 ft (7.9 m) LOA fishing in the
shaded portion of the striated area are required to continue using
seabird avoidance measures. In the striated area of Area 4E, vessels
> 26 ft (7.9 m) to 55 ft (16.8 m) are exempt from seabird avoidance
measures, and vessels > 55 ft (16.8 m) continue to use seabird
avoidance measures. Vessels <= 26 ft (7.9 m) continue to be exempt
from seabird avoidance measures throughout all of Area 4E.
The best available scientific information regarding seabird
observations in the Area 4E indicates that ESA-listed seabirds and
other seabird species of concern are not likely to occur in Area 4E,
except for the southern portion where seabird avoidance measures
continue to be required. Therefore, the final rule eliminates seabird
avoidance measures where interactions with seabird species of concern
are not likely to occur and ensures that such measures are used in
waters where interactions with seabird species of concern are likely to
occur. Table 19 to part 679 also is revised to correct cross
references. Under the descriptions for the seabird avoidance gear and
other methods, the reference to Sec. 679.24(e)(5) is corrected to read
Sec. 679.24(e)(4).
Comments and Responses
NMFS received no comments on the proposed rule (74 FR 2984, January
16, 2009). No substantive changes were made in the final rule from the
proposed rule. Minor editorial changes were made to Tables 19 and 20
and to Sec. 679.24(e)(3)(i).
Classification
The Administrator, Alaska Region, NMFS, determined that the final
rule is necessary for the conservation and management of the groundfish
fisheries and that it is consistent with the Magnuson-Stevens Act, the
Halibut Act, and other applicable laws.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA describes the economic impact of this final rule on small
entities. The FRFA incorporates the initial regulatory flexibility
analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA, NMFS' responses to those
comments, and a summary of the analyses completed to support the
action. Descriptions of the action, the reasons it is under
consideration, and its objectives and legal basis are included earlier
in the preamble and in the SUMMARY section of the preamble. A copy of
the FRFA is available from NMFS (see ADDRESSES).
The IRFA was described in the classification section to the
proposed rule (74 FR 2984, January 16, 2009), and the public was
notified of how to obtain a copy of the IRFA. The public comment period
ended on February 17, 2009. No comments were received on the IRFA or on
the economic impacts of the rule.
The vessels that fish for groundfish or halibut with hook-and-line
gear in the waters off Alaska would be directly regulated by this
action. The seabird avoidance measures presently in place, and the
alternatives and options considered, apply directly to the operator of
a vessel deploying hook-and-line gear in the waters off Alaska.
[[Page 13357]]
These regulations apply to the operation of a vessel and not directly
to the halibut or sablefish IFQ-holder 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 hook-and-line
groundfish fisheries in the Bering Sea and Aleutian Islands management
area in 2006. In 2006, 52 hook and line catcher vessels (CVs) and 6
hook-and-line catcher processors (CPs) reported that they caught and
processed less than $4 million in gross ex-vessel 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 AFA-permitted
vessels. Because AFA affiliations are relatively stable across years,
none of these vessels are large because of AFA affiliations.
This regulation does not impose new recordkeeping and reporting
requirements on the regulated small entities.
The FRFA did not reveal any Federal rules that duplicate, overlap,
or conflict with the action.
The Council considered four alternatives and two options for this
action. Alternative 1 is the status quo, which would require the
continued use of seabird avoidance measures for all hook-and-line
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 hook-and-line 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 only to vessels in this size class, partially meeting
the objectives of the action for the hook-and-line fleet.
Alternative 3 (preferred) exempts hook-and-line 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 provides more
economic relief to the hook-and-line fleet than Alternatives 1 and 2.
Alternative 4 would exempt all hook-and-line 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-
and-line 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 hook-and-
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) requires full compliance with the seabird avoidance
measures inside the shaded portion of Area 4E, as shown in Figure 1 of
the proposed rule (74 FR 2984, January 16, 2009), 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 short-tailed 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 hook-and-line 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
short-tailed 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 short-tailed albatross from potential
incidental takes by any hook-and-line 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 action and is necessary for the protection of short-
tailed albatross and other seabirds that may occur in the shaded area
of Figure 1 of the proposed rule, making it more compliant with other
applicable law (e.g., Endangered Species Act).
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, NMFS Alaska Region has developed a website
that provides easy access to details of this final rule, including
links to the final rule, sources for seabird avoidance gear, and a
history of seabird avoidance measures in the Alaska fisheries. The
relevant information available on the website is the Small Entity
Compliance
[[Page 13358]]
Guide. The website address is http://www.fakr.noaa.gov/protectedresources/seabirds.htm. Copies of this final rule are
available upon request from the NMFS, Alaska Regional Office (see
ADDRESSES).
An informal consultation with the U. S. Fish and Wildlife Service
(FWS) under the Endangered Species Act was concluded for this 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: March 23, 2009.
John Oliver
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For reasons set out in the preamble, NMFS amends 50 CFR part 679 as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108 447.
0
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 hook-and-line 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.
* * * * *
0
3. Tables 19 and 20 to part 679 are revised to read as follows:
Table 19 to Part 679--Seabird Avoidance Gear Codes
------------------------------------------------------------------------
VESSEL LOGBOOK
-------------------------------------------------------------------------
SEABIRD AVOIDANCE GEAR OR
CODE METHOD.
------------------------------------------------------------------------
1 Paired Streamer Lines: Used
during deployment of hook-
and-line 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-
and-line 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 hook-and-
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 hook-and-
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-
and-line gear during dark
(night time hours).
----------------------------
Line Shooter: A hydraulic
device designed to deploy
hook-and-line gear at a
speed slightly faster than
the vessel's speed during
setting.
----------------------------
Lining Tube: A device used
to deploy hook-and-line
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.
------------------------------------------------------------------------
[[Page 13359]]
Table 20 to Part 679--Seabird 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 hook- then you must use this seabird
and-line gear, other than snap gear, avoidance gear in conjunction
in waters specified at Sec. with requirements at Sec.
679.24(e)(3), and your vessel is... 679.24(e)...
------------------------------------------------------------------------
>26 ft to 55 ft LOA and without masts, minimum of one buoy bag line
poles, or rigging
------------------------------------------------------------------------
>26 ft to 55 ft LOA and with masts, minimum of a single streamer
poles, or rigging 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 hook- then you must use this seabird
and-line gear and use snap gear in avoidance gear in conjunction
waters specified at Sec. with requirements at Sec.
679.24(e)(3), and your vessel is... 679.24(e)...
------------------------------------------------------------------------
>26 ft to 55 ft LOA and without masts, minimum of one buoy bag line
poles, or rigging
------------------------------------------------------------------------
>26 ft to 55 ft LOA and with masts, minimum of a single streamer
poles, or rigging 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 then...
hook-and-line vessels...
------------------------------------------------------------------------
< 32 ft LOA in the State waters of IPHC you are exempt from seabird
Area 4E avoidance measures.
----------------------------------------
in NMFS Reporting Area 649 (Prince ...............................
William Sound)
----------------------------------------
in State waters of Cook Inlet ...............................
----------------------------------------
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 LOA 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. E9-6894 Filed 3-26-09; 8:45 am]
BILLING CODE 3510-22-S