[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51805-51814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26330]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7220-05; I.D. 010397A]
RIN 0648-AI84


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations

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

ACTION: Final rule.

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

SUMMARY: NMFS issues a final rule to require new training, equipment, 
and gear modifications for operators and vessels in the California/
Oregon drift gillnet fishery for thresher shark and swordfish to reduce 
the level of mortality and serious injury of several marine mammal 
stocks that occur incidental to fishing operations.

DATES: Effective October 30, 1997.

ADDRESSES: Copies of the final Pacific Offshore Cetacean Take Reduction 
Plan and final Environmental Assessment (EA) prepared for the final 
rule may be obtained by writing to Irma Lagomarsino, Southwest Region, 
NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; or 
Victoria Cornish, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, 562-980-4016; 
or Victoria Cornish, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION: The California/Oregon drift gillnet (CA/OR 
DGN) fishery which targets thresher shark and swordfish, is classified 
as a Category I fishery under section 118 of the Marine Mammal 
Protection Act (MMPA; 16 U.S.C. 1361 et seq.). A Category I fishery is 
a fishery that has frequent incidental mortality and serious injury of 
marine mammals. The majority of the fishing effort in the CA/OR DGN 
fishery occurs within 200 miles (320 km) offshore of California and 
Oregon. Under California state law, from May 1 through August 14, drift 
gillnets may not be used to take swordfish or thresher shark in ocean 
waters within 75 nautical miles of the California mainland coastline 
(California Fish and Game Code, Sec. 8576). Swordfish may be taken 
within 75 nautical miles of the California mainland from August 15 to 
January 31; additional area restrictions also apply within this area. 
From February through April, drift gillnets may not be used.
    The CA/OR DGN fishery has a historical incidental bycatch of 
several strategic marine mammal stocks including: Several beaked whale 
species, short-finned pilot whales, pygmy sperm whales, sperm whales, 
and humpback whales (Barlow et al., 1995). A strategic stock is a 
stock: (1) For which the level of direct human-caused mortality exceeds 
the potential biological removal (PBR) level; (2) that is declining and 
is likely to be listed under the Endangered Species Act (ESA) in the 
foreseeable future; or (3) that is listed as a threatened or endangered 
species under the ESA.
    Section 118 of the MMPA requires NMFS to develop and implement a 
take reduction plan to assist in the recovery or to prevent the 
depletion of each strategic stock that interacts with a Category I or 
II fishery. The immediate goal of a take reduction plan is to reduce, 
within 6 months of its implementation, the level of mortality and 
serious injury of strategic stocks incidentally taken in the course of 
commercial fishing operations to less than the PBR levels established 
for such stocks. Since the CA/OR DGN fishery is a Category I fishery 
that interacts with several strategic stocks, NMFS established the 
Pacific Offshore Cetacean Take Reduction Team (PCTRT) on February 12, 
1996 (61 FR 5385), to prepare a draft take reduction plan. The PCTRT 
includes representatives of NMFS, the California Department of Fish and 
Game (CDFG), the Pacific States Marine Fisheries Commission, 
environmental organizations, academic and scientific organizations, and 
participants in the CA/OR DGN fishery. In selecting these team members, 
NMFS sought an equitable balance among representatives of resource user 
and non-user interests.
    The PCTRT was tasked with developing a consensus plan for reducing 
the level of mortality and serious injury of strategic marine mammal 
stocks incidental to the CA/OR DGN fishery. The PCTRT met five times 
between February and June 1996 and submitted a consensus draft plan to 
NMFS on August 15, 1996 (draft PCTRP, 1996). The draft PCTRP included: 
(1) A review of the current information on the status of the affected 
strategic marine mammal stocks; (2) a description of the CA/OR DGN 
fishery; (3) an analysis of data from NMFS' CA/OR DGN fishery observer 
program from 1990-1995; (4) primary strategies to reduce takes of 
strategic marine mammal stocks; (5) contingency measures that would 
reduce fishing effort; and (6) other recommendations regarding 
voluntary measures to reduce takes, measures to enhance the 
effectiveness of the observer program, research on oceanographic/
environmental variables, and other potential strategies considered and 
rejected by the team. The PCTRT recommended that three of the four 
primary strategies of the draft PCTRP (1996) be administered on a 
mandatory basis (strategies #1, #2, and #4) and that one be 
administered on a voluntary basis (strategy #3). NMFS reconvened the 
PCTRT in May 1997 and it provided NMFS with additional comments and 
recommendations on the proposed PCTRP and proposed rule to implement 
the plan (see PCTRT Recommendations from the 1997 Meeting section).
    Because the implementation of the PCTRP would result in the 
regulation of the state-managed CA/OR DGN fishery, NMFS contacted both 
CDFG and the Oregon Department of Fish and Wildlife (ODFW) on how best 
to proceed with the Plan's implementation. CDFG and ODFW both deferred 
to the Federal government to issue regulations under the authority of 
the MMPA to implement the PCTRP. On February 14, 1997, NMFS proposed 
regulations under the MMPA (62 FR 6931) to implement three of the 
primary strategies recommended by the PCTRT (draft PCTRP, 1996). These 
strategies include the establishment of a minimum depth-of-fishing 
requirement (strategy #1), use of acoustic deterrent devices (pingers) 
(strategy #2), and mandatory skipper workshops (strategy #4). NMFS also 
proposed to implement primary strategy #3 on a voluntary basis, under 
which NMFS would encourage CDFG not to reissue lapsed permits, 
encourage ODFW to continue issuing not more than 10 permits per year 
and explore the development of a permit buyback program for both CDFG 
and ODFW permit holders. In the proposed rule, NMFS described how it 
intended to implement the other sections of the draft PCTRP.
    In addition to publication in the Federal Register, NMFS issued a 
press release announcing the availability of the proposed rule and 
summarizing the

[[Page 51806]]

major issues contained in the proposed rule. Information in the press 
release was published in several California newspapers and broadcast on 
at least one radio station. Voluntary Skipper Education Workshops were 
held in several locations throughout California in June 1997, providing 
an additional opportunity to inform participants in the fishery about 
the proposed rule and PCTRP.
    The final rule will govern fishing by all U.S. drift gillnet 
vessels operating in waters seaward of the coast of California or 
Oregon, including adjacent high seas waters. This final rule applies to 
U.S. drift gillnet vessels originating from ports outside California or 
Oregon (e.g., Alaska). NMFS has determined that implementation of this 
final rule is expected to reduce, within 6 months of its 
implementation, mortalities and serious injuries of all strategic 
stocks that are taken by the CA/OR drift gillnet fishery to below the 
PBR level for each stock.

Responses to Comments

    NMFS received six written comments during the comment period for 
the proposed rule. Comments were received from fishers, environmental 
groups, the Pacific States Marine Fisheries Commission, and members of 
the general public. Key issues and concerns are summarized and 
responded to as follows:

Comments on the Depth of Fishing Requirement (Strategy #1)

    In the proposed rule, NMFS proposed to establish a minimum depth-
of-fishing requirement that would prohibit the use of extenders that 
are less than 36 ft (10.9 m). Extender lines (buoy lines) attach buoys 
(floats) to a drift gillnet's floatline and determine the depth in the 
water column at which the net is fished. Two commenters agreed with the 
establishment of a minimum 36 ft (10.9 m) depth-of-fishing requirement 
as a method to reduce incidental marine mammal mortality and serious 
injury. Two commenters felt that there must be a mechanism to enforce 
the extender provision. One commenter believed that since fishing at 
depths that are greater than 36 ft (10.9 m) results in a lower catch of 
target fish, vessel operators will fish shallower in the water when 
observers are not on the vessel. Consequently, future observer data may 
not be representative of the actual marine mammal take in the entire 
fishery.
    Response: On those boats that are carrying marine mammal observers 
(e.g., expected to be approximately 20 percent of the fishing effort), 
information will collected by observers on whether there is compliance 
with the minimum depth-of-fishing requirement. However, NMFS agrees 
that this may not be sufficient to ensure compliance. Therefore, NMFS 
enforcement agents will conduct random checks and NMFS will work with 
state agents to monitor compliance. In addition, since the cost of a 
drift gillnet is approximately $10,000 and interactions with marine 
mammals often results in net damage or net loss, vessel operators will 
be motivated to make changes in their fishing gear or techniques to 
avoid marine mammal entanglement, and subsequently, net damage or loss. 
Furthermore, analysis of the best available data indicates that 
swordfish and thresher shark are equally likely to be caught at depths 
that are greater than 36 ft (10.9 m), even though drift gillnet fishers 
sometimes fish at shallower depths (NMFS unpublished data). Combined 
with other strategies, NMFS believes the minimum depth-of-fishing 
requirement will significantly contribute to reductions in cetacean 
bycatch, including strategic stocks in the CA/OR DGN fishery.

Comments on the Pinger Experiment and Requirement (Strategy #2)

    Comment 1: One commenter agreed with NMFS that the preliminary 
results from the 1996/1997 CA/OR DGN fishery pinger experiment supports 
the use of pingers.
    Response: NMFS agrees.
    Comment 2: One commenter was concerned about the biological impact 
of pingers on cetaceans and recommended that they should not be used 
until scientific evidence shows that pingers are not harmful to any 
strategic stock.
    Response: NMFS prepared an Environmental Assessment (EA) on the use 
of acoustic pingers to reduce marine mammal bycatch in commercial 
fisheries (NMFS, 1997a). NMFS concluded that the sound intensity levels 
of pingers will not cause physical injury or temporary threshold shifts 
in marine mammals. Furthermore, due to the limited sound range of 
pingers and the limited level of fishing effort in the CA/OR DGN 
fishery, ensonifying major portions of the ocean will not occur. Thus, 
the negative impact of pingers used by the CA/OR DGN fishery on marine 
mammals is likely to be negligible. Nevertheless, monitoring programs 
will evaluate changes in distribution to evaluate whether cetaceans are 
avoiding important habitat. NMFS will continue to evaluate the status 
of strategic marine mammal stocks that interact with the CA/OR DGN 
fishery on an annual basis. NMFS made similar determinations regarding 
the impact of pingers on marine mammals in the EA prepared for this 
final rule (NMFS, 1997b).
    Comment 3: One commenter believed that pinger noise during the 
experiment may constitute ``harassment'' under the MMPA and ESA.
    Response: Although scientific results clearly indicate that pingers 
significantly reduced harbor porpoise bycatch in the New England sink 
gillnet fishery (Reeves et al., 1996) and cetacean bycatch in the CA/OR 
DGN fishery (see section on 1997 PCTRT Recommendations), scientists do 
not know why they worked (NMFS, 1997a). Several mechanisms are 
possible. For example, pingers may operate as acoustic alarms alerting 
animals to the presence of fishing gear on the assumption they will 
avoid the gear if made aware of its presence. Alternatively, the sounds 
emitted by pingers may repel marine mammals away from the gear. Another 
possibility is that the pingers disperse the prey upon which marine 
mammals forage and thus, affect marine mammal behavior indirectly.
    The state of knowledge about marine mammal hearing abilities and 
behavior in response to various types of sound is limited (Reeves et 
al., 1996). However, pingers were not originally designed to harass 
marine mammals. Pingers produce relatively weak sound pulses of 132 dB 
re 1 Pa at 1 m which attenuate to ambient noise levels at a distance of 
only 300 m (984.3 ft) from the source (NMFS, 1997a). In contrast, 
``acoustic harassment devices'' were specifically designed to emit much 
louder acoustical pulses (e.g., 187-218 dB re 1 Pa at 1 m) strong 
enough to keep pinnipeds away from nets and aquaculture facilities 
(Richardson et al., 1995; NMFS, 1997a).
    It is questionable if the operation of pingers would constitute an 
``act of pursuit, torment or annoyance'' under the definition of 
``harassment'' in section 3 of the MMPA. Furthermore, pingers have no 
potential to injure a marine mammal. Regardless, even if the operation 
of pingers does constitute ``harassment'' under the MMPA, section 
101(a)(4) of the MMPA allows the use of certain measures by the owners 
of fishing gear to deter marine mammals so long as such measures do not 
result in the death or serious injury of a marine mammal. NMFS 
recommends the use of pingers in the CA/OR DGN fishery as a specific 
measure that may be used to nonlethally deter marine mammals. Likewise, 
such takes are allowed under section 118 of the MMPA.

[[Page 51807]]

    With respect to the ESA, there is no statutory definition for 
``harassment'' and NMFS has not issued a regulatory definition for this 
term. In interpreting this term, NMFS examined a variety of factors, 
including the extent to which the activity disrupts normal behavioral 
patterns and whether it is likely to produce harm or injury. NMFS has 
concluded that there is no evidence available at this time that would 
suggest the use of pingers to deter marine mammals from interacting 
with fishing gear would constitute harassment under the ESA.
    NMFS will continue to investigate the possible mechanisms of why 
pingers reduce cetacean entanglement in the CA/OR DGN fishery. If NMFS 
determines that the effect of sound emitted from pingers does 
constitute ``harassment'', it will take appropriate action, which may 
include action to modify the requirements for pinger use, to alter the 
specifications for pingers or to ensure any necessary authorizations 
are in place.
    Comment 4: Two commenters cautioned that pingers may not be 
effective at reducing cetacean bycatch in the CA/OR DGN fishery due to 
the variety of cetaceans that are entangled.
    Response: NMFS and the fishery conducted an experiment during the 
1996/1997 fishing season in the CA/OR DGN fishery to test the efficacy 
of pingers at reducing cetacean entanglement. Results from this study 
indicate that the use of pingers is effective at significantly reducing 
cetacean bycatch in the fishery (see 1997 PCTRT Recommendations 
section). NMFS will continue to evaluate the long-term effectiveness of 
pingers at reducing strategic stock bycatch in the CA/OR DGN fishery.
    Comment 5: One commenter stated that the proposed rule failed to 
explain clearly how NMFS would certify that pingers were NMFS approved 
or enforce the pinger specifications (e.g., intensity, frequency, 
etc.).
    Response: NMFS agrees that the issue of pinger certification needs 
to be clarified. In the proposed rule, NMFS stipulated that only 
``NMFS-approved pingers'' could be used in the fishery and that if 
requested, NMFS may authorize the use of non-NMFS-approved pingers for 
limited experimental purposes. This final rule stipulates 
specifications for pingers that are required to be used in the CA/OR 
DGN fishery under section 229.31(c)(1). Since all pingers used in the 
fishery must meet these specifications, all references to NMFS-approved 
pingers have been removed from the final rule. NMFS is not requiring 
manufacturers to have their pingers certified by an independent company 
that their pingers meet the pinger specifications of the final rule; 
independent companies are not necessarily more credible at testing the 
sound characteristics of pingers than the manufacturer. However, 
manufacturers of pingers will need to provide documentation that their 
pingers meet the specifications of the final rule. NMFS will monitor, 
periodically, whether the pingers used by the fishery meet the 
specifications under section 229.31(c)(1) to ensure compliance with 
this requirement. In the future, if experimental findings support the 
use of a pinger with different specifications, NMFS would establish new 
specifications by rulemaking, and also provide actual notice to drift 
gillnet vessel operators.
    Comment 6: One commenter suggested that in the final rule NMFS 
publish: (1) The parameters of the drift gillnet pinger experiment; (2) 
the basis for the pinger spacing requirements and; (3) a requirement 
that all vessels carry four spare pingers. Furthermore, they 
recommended that NMFS conduct additional research to determine whether 
the spacing requirements for pingers are adequate.
    Response: The experimental design for the 1996/1997 pinger 
experiment in the CA/OR DGN fishery was based primarily on the 
recommendations from the participants of an acoustic workshop (Reeves 
et al., 1996). Based on these suggestions, the PCTRT drafted the pinger 
experimental protocol, circulated it for peer review, and made the 
appropriate changes to ensure that a scientifically credible experiment 
would be conducted. The details of the experimental protocol can be 
found in the draft PCTRP (1996) and is not repeated here.
    The participants in the acoustic workshop (Reeves et al., 1996), 
and the PCTRT, recommended that pingers be placed every 300 ft (91.44 
m) on the leadline and floatline for experimental purposes in the CA/OR 
DGN fishery. This interval was suggested because it had been effective 
at reducing harbor porpoise bycatch in the New Hampshire sink gillnet 
fishery. In addition, drift gillnets are often set with the floatline 
above the ocean thermocline and with the leadline below it, especially 
sets targeting swordfish. Since thermoclines act as barriers to sound 
transmission, they also recommended that the pingers placed on both 
lines be staggered such that the horizontal distance between a pinger 
on the floatline and a pinger on the leadline is 150 ft (45.72 m). For 
a typical 6000 ft (1828.80 m) net, 21 pingers on the floatline and 20 
pingers on the leadline would be needed (41 total pingers). The final 
rule requires this pinger configuration on the net. NMFS will continue 
to evaluate the long-term efficacy of pingers at reducing cetacean 
bycatch in the fishery and whether the spacing intervals require 
modification.
    NMFS does not agree that CA/OR DGN fishery vessel owners should be 
required to maintain four pingers as spares, because the requirement 
that all pingers remain functioning and operational at all times during 
deployment provides adequate direction to vessel owners.
    Comment 7: One commenter questioned the significance of the 
preliminary results from the 1996/1997 pinger experiment in the CA/OR 
DGN fishery because they believed the experiment was conducted only in 
August and may not be representative of the entire fishing season.
    Response: NMFS would like to clarify that the 1996/1997 pinger 
experiment was conducted from September 1996-January 1997. Thus, the 
results from the experiment are based on the months in which the 
majority of fishing effort occurs.
    Comment 8: One commenter was concerned with the possibility that 
marine mammals may become habituated to the sound of pingers.
    Response: At this time, it is not possible to determine whether 
cetaceans will become habituated to the sounds emitted by pingers. 
However, since the CA/OR DGN fishery operates offshore, over a broad 
geographic area, and the sound range of pingers is limited, habituation 
would be less likely in this fishery compared to nearshore fisheries 
(NMFS 1997a). To the extent that pingers are thought to operate as an 
alarm mechanism, increased exposure to pingers may increase their 
effectiveness in reducing interactions depending on the learning 
behavior of cetaceans. NMFS will continue to monitor the status of 
cetaceans that interact with this fishery.

Comments on the Voluntary Program To Reduce the Number of Gillnet 
Permits (Strategy #3)

    Comment 1: Several commenters agreed that the CDFG should be 
encouraged to deny reissuance of lapsed permits and that ODFW should be 
encouraged not to issue more than the current level of unlimited 
landings permits (strategy #3, part I). One commenter believed that 
this strategy was not likely to result in decreases in marine mammal 
mortality. One commenter supported the draft PCTRP's voluntary permit 
``buy-back program'' to

[[Page 51808]]

reduce the number of drift gillnet permits (strategy #3, part II) as a 
method of reducing marine mammal mortality.
    Response: The PCTRT recognized that the California drift gillnet 
fishery is not restricted from an expansion in fishing effort because a 
portion of CDFG drift gillnet permittees make only the minimum landings 
to keep valid permits. If these permit holders began fishing well 
beyond these minimum requirements, marine mammal entanglements likely 
would increase. To limit this potential expansion of fishing effort, 
the PCTRT recommended two approaches that would reduce the number of 
drift gillnet permits under strategy #3. First, information provided to 
the PCTRT indicated that currently CDFG does not reissue lapsed drift 
gillnet permits. For these reasons, the PCTRT recommended that CDFG be 
encouraged to continue not to reissue drift gillnet permits that have 
lapsed and that ODFW be encouraged to continue to issue not more than 
10 unlimited landing permits. Second, the PCTRT recommended that the 
development of a permit buy-back program be explored. A buy-back 
program would focus on those fishers that hold drift gillnet permits 
from the State of California and who only fulfill the minimum 
requirements to maintain their permits.
    Implementation of the recommendations to CDFG would affect only 
those permit holders who allow their CDFG drift gillnet permits to 
lapse. Implementation of the buyback program would only affect drift 
gillnet permit holders who were interested in being financially 
compensated for allowing their permits to lapse. Strategy #3 would not 
affect those drift gillnet fishers that annually maintain valid CDFG 
drift gillnet permits or who did not want to voluntarily participate in 
the buy-back program. This strategy is not a measure to put a ``cap on 
total fishing effort'' in the CA/OR DGN fishery (i.e., establish a 
maximum threshold on the number of sets each year). Implementation of 
strategy #3 is not likely to significantly decrease the current level 
of incidental marine mammal mortality by the fishery in the short-term, 
but is designed to limit the potential expansion of fishing effort and 
associated marine mammal mortality in the long-term.
    As recommended by the Team, NMFS contacted both CDFG and ODFW 
regarding implementation of Strategy #3 of the Plan. Specifically, NMFS 
encouraged CDFG to continue its current practice of not reissuing 
lapsed drift gillnet permits and inquired whether CDFG was interested 
in participating in a permit buy-back program. CDFG agreed to continue 
implementing its current practice of not reissuing lapsed drift gillnet 
permits.
    At this time, CDFG is unable to participate in any permit buy-back 
program. Although NMFS does not have funding to implement a permit buy-
back program, section 118(j) of the MMPA allows NMFS to accept, 
solicit, receive, hold, administer and use gifts, devises and bequests 
to carry out the provisions of section 118, which includes the 
implementation of take reduction plans. NMFS will continue to explore 
the development of a buy-back program.
    NMFS also contacted ODFW and encouraged the agency to continue to 
issue no more than 10 unlimited-landings drift gillnet landings 
permits. ODFW stated that it did not plan on asking the Oregon Fish and 
Wildlife Commission to increase the maximum number of landings permits. 
ODFW also stated that all vessels holding Oregon gillnet permits in 
1997 are vessels that currently participate in the California DGN 
fishery.
    Comment 2: One commenter agreed with the implementation of the buy-
back program, although they recommended it should be coupled with other 
economic incentive programs (e.g., raising state landing taxes).
    Response: The PCTRT considered increasing fees in the fishery. 
However, the PCTRT rejected this method as a primary strategy at this 
time, because it would require a change in California law, would be a 
financial hardship to some fishers, and may not necessarily reduce 
current fishing effort.

Comments on the Skipper Education Workshops (Strategy #4)

    Comment: Several commenters agreed that mandatory education during 
Skipper Education Workshops would help facilitate the implementation of 
the PCTRP. One commenter suggested that NMFS issue documentation to 
vessel operators that attend workshops to verify their participation 
and require that this documentation be onboard their vessel when they 
are participating in the CA/OR DGN fishery.
    Response: Documentation of workshop attendance does not need to be 
kept on vessels because NMFS will maintain a database of all skippers 
who participate in the workshops to verify workshop attendance by 
individual vessel operators. This database will be used for enforcement 
of the Skipper Education Workshop provision.

Comments on Contingency Measures Involving a Reduction in Fishing 
Effort

    Comment: One commenter was concerned that the language used in the 
proposed rule describing the PCTRT's recommendations regarding 
``contingency measures involving a reduction in fishing effort'' was 
not consistent with the draft PCTRP submitted by the team.
    Response: NMFS agrees that inappropriate language regarding 
``contingency measures'' was used in the proposed rule. The draft PCTRP 
included an evaluation of several measures to reduce fishing effort in 
the CA/OR DGN fishery as a potential method of reducing the incidental 
taking of strategic marine mammal stocks (section IV; draft PCTRP, 
1996). Although none of the primary strategies included measures to 
reduce fishing effort, the team agreed to the following:

    If at the time the Take Reduction Team reconvenes, the TRP 
objectives have not been met, the TRT will evaluate and recommend 
methods to reduce fishing effort in the upcoming fishing season, 
unless there are other applicable measures which could reasonably be 
expected to reduce take levels to below PBR in the upcoming fishing 
season.


    The PCTRT also recommended that NMFS reconvene the team every year 
prior to June 15 to monitor the implementation of the final PCTRP, 
until such time that NMFS determines that the objectives of the MMPA 
have been met.
    NMFS reconvened the PCTRT May 29-30, 1997 (PCTRT, 1997), and 
intends to continue to reconvene the PCTRT on an annual basis (prior to 
June 15) until the long-term take reduction goals of the MMPA have been 
reached by the CA/OR DGN fishery. NMFS did not intend to propose any 
changes to the PCTRT's original recommendations regarding contingency 
measures in the proposed rule. NMFS concurs with the PCTRT's original 
recommendation that the objectives of these meetings are to review the 
best available information on the status of strategic stocks, the 
latest PBR and take estimates for marine mammals incidentally taken in 
the fishery, and the efficacy of measures implemented to reduce the 
incidental taking of these stocks. Furthermore, NMFS agrees that if at 
the time the team reconvenes, after the final plan has been adopted by 
NMFS, the goals of the MMPA have not been met, the TRT will evaluate 
and recommend methods to reduce fishing effort in the upcoming fishing 
season, unless there are other applicable measures which could 
reasonably be expected to reduce take levels to below PBR in the 
upcoming fishing season.

[[Page 51809]]

General Comments on the Proposed Rule

    Comment 1: One commenter suggested that a reduction of marine 
mammal mortality of 50 percent could be achieved if the length of the 
net was reduced by 50 percent.
    Response: NMFS agrees that reducing the size of the net could 
potentially decrease the number of marine mammals captured per set. 
However, it would also decrease the number of target species captured 
per set. Since this would encourage inefficient fishing, some fishers 
may compensate for the reduced catch rate by increasing the number of 
sets over the season. Thus, overall incidental marine mammal take may 
not change. Furthermore, although the TRT discussed several measures 
that would decrease fishing effort, including reducing net size, it did 
not recommend their implementation at this time.
    Comment 2: One commenter recommended that a program be created to 
rescue whales caught in drift gillnets.
    Response: Although similar programs have been developed on the east 
coast to disentangle large whales caught in fishing gear, only a small 
portion of the cetaceans caught in the CA/OR DGN fishery are alive when 
the net is pulled from the water. In addition, the fishery operates 
primarily offshore in locations where rescues would be infeasible.
    Comment 3: One commenter cautioned that the implementation of the 
PCTRP is not likely to achieve the Zero Mortality Rate Goal (ZMRG) in 5 
years.
    Response: Section 118(f)(2) of the MMPA establishes ZMRG as a long-
term goal of take reduction plans, taking into account the economics of 
the fishery, the availability of existing technology, and existing 
State or regional fishery management plans. NMFS has concluded that the 
primary strategies recommended by the PCTRT represent substantial 
progress toward achieving the ZMRG. Nonetheless, NMFS also recognizes 
that these strategies, by themselves, may not be sufficient to 
guarantee this goal will be achieved. For this reason, NMFS will 
reconvene the team at least once a year to monitor the implementation 
of the final TRP, and, if necessary, recommend measures for the fishery 
to achieve its ZMRG within the time period specified in the MMPA.
    Comment 4: One commenter suggested that the proposed rule 
contradicted the draft PCTRP recommendation to encourage vessel owners 
to convert their nets to a mesh size of 20 inches during the Skipper 
Education Workshops, but not to convert their mesh to a twine size of 
#27.
    Response: The PCTRT evaluated the relationship between mesh size 
and cetacean bycatch. Their analysis found that mesh size was not 
significantly related to entanglement of cetaceans although there was a 
trend towards greater mesh sizes entangling more cetaceans. The 
biological reasons for this trend are unknown. Nevertheless, the PCTRT 
recommended that all vessels in the CA/OR DGN fishery voluntarily 
convert to 20-inch (50.8 cm) net mesh size when replacing old nets or 
large panels of existing net and that information be collected to 
further evaluate the efficacy of using 20-inch (50.8 cm) mesh as a 
method for reducing cetacean bycatch (draft PCTRP, 1996). NMFS will 
encourage vessel operators to voluntarily convert to 20-inch mesh (50.8 
cm) during its Skipper Education Workshops. If in the future more of 
the fleet uses this mesh size, the relationship between mesh size and 
cetacean bycatch may be better understood.
    No significant correlations were found between specific twine sizes 
and higher cetacean entanglement (draft PCTRP, 1996). The PCTRT did not 
recommend that NMFS encourage vessel owners to convert their nets to a 
different twine size. However, NMFS will continue to evaluate the 
relationship of twine size and cetacean bycatch in order to evaluate 
twine size as a potential strategy to reduce cetacean bycatch.
    Comment 5: One commenter recommended that NMFS undertake the 
necessary research to determine whether adjusting the percentage of 
slack in the net may reduce cetacean bycatch.
    Response: The PCTRT evaluated the relationship between the 
percentage of slack in the net and cetacean bycatch. Because the PCTRT 
found only a borderline significance for the slack percentages of 30-40 
and 45-60, the PCTRT did not recommend requiring specific net slacks as 
a primary strategy in the draft PCTRP. NMFS agrees with this 
recommendation and therefore, has not included it as a requirement in 
the final rule. However, NMFS will refine the collection of data on net 
slack in order to evaluate the utility of percent of net slack as a 
strategy to reduce cetacean bycatch.
    Comment 6: One commenter stated that if the incidental take of 
marine mammals is reduced to zero, there would be no need to reduce 
fleet expansion.
    Response: Theoretically, if marine mammal mortality and serious 
injury incidental to operations of the CA/OR DGN fishery is reduced to 
zero, there would be no need to limit the expansion of effort in the 
fishery unless that expansion precluded the fishery from achieving its 
take reduction goals under the MMPA. Nevertheless, the likelihood that 
marine mammal bycatch will be reduced to absolute zero is low. Thus, 
since fishing effort and marine mammal bycatch are significantly 
correlated, substantial increases in fishing effort would likely 
require additional take reduction strategies in order for the fishery 
to meet its take reduction goals under the MMPA.
    Comment 7: One commenter recommended increasing the closed season 
and/or banning the use of drift gillnets in California.
    Response: The PCTRT explored several measures to reduce fishing 
effort in the fishery, and associated marine mammal entanglement. 
However, at this time, the PCTRT and NMFS expect that the short-term 
goals of the MMPA can be met without reducing fishing effort, 
increasing the closed season, or banning the use of drift gillnets off 
California.
    Comment 8: One commenter noted that there is a discrepancy between 
numbers used to refer to each primary strategy (e.g., strategy #1, #2, 
etc.) in the proposed rule and the draft PCTRP (1996).
    Response: NMFS agrees and has changed the final rule's references 
to the plan strategies to be consistent with each strategy of the plan.
    Comment 9: One commenter concluded that the draft PCTRP was 
inadequate to reduce marine mammal mortality in the CA/OR DGN fishery 
and urged NMFS to modify the plan to meet the requirements of the MMPA.
    Response: NMFS disagrees. The PCTRT and NMFS expects the 
implementation of the PCTRP will achieve the short-term goals of the 
MMPA. NMFS will continue to review and evaluate the effectiveness of 
measures implemented under the plan to reduce cetacean entanglement. 
Furthermore, the Pacific Scientific Review Group recommended that ``* * 
* extreme management measures that may severely restrict or impact 
California driftnet fishing activities be postponed until analyses of 
data from pinger experiments and from current ship surveys for cetacean 
abundance are completed * * *'' (PSRG, 1997). Moreover, in addition to 
the four primary strategies recommended by the PCTRT, they also 
identified an additional 13 strategies that might reduce bycatch of 
strategic marine mammal stocks (draft PCTRP, 1996). These strategies 
were either rejected by the PCTRT or held in reserve for future

[[Page 51810]]

consideration. If the goals of section 118(f) of the MMPA have not been 
met once the final PCTRP has been implemented, these strategies may be 
reconsidered by the PCTRT and NMFS. NMFS will reconvene the team 
annually to monitor the implementation of the final plan and provide 
NMFS with recommendations as to whether additional measures are 
necessary to achieve the short-term and long-term goals of the MMPA.

1997 PCTRT Recommendations

    On May 29-30, 1997, NMFS reconvened the PCTRT to review the final 
results from the 1996/1997 CA/OR DGN pinger experiment and evaluate the 
need for effort reduction and potential implementation mechanisms as 
recommended by the Team in the draft PCTRP (draft PCTRP, 1996). The 
Team also reviewed at the meeting the status of the implementation of 
the final Plan and final Rule to implement the Plan, Skipper Education 
Workshops, and the drift gillnet observer program. On July 18, 1997, 
the Team submitted to NMFS the following recommendations regarding the 
proposed plan and rule (PCTRT, 1997).

Depth of Fishing Requirement (Strategy #1)

    In August 1996, the PCTRT recommended that NMFS establish a 
fleetwide 6-fathom minimum extender line (buoy line) requirement. At 
the May 1997 PCTRT meeting, the team concurred with NMFS's proposed 
rule requiring the use of extenders that are equal to or greater than 6 
fathoms for all vessels in the CA/OR DGN fishery. This final rule 
prohibits the use of extenders that are less than 6 fathoms (36 ft; 
10.9 m).

Pinger Experiment and Requirement (Strategy #2)

    In August 1996, the PCTRT recommended that NMFS and the CA/OR DGN 
fishery initiate a pinger experiment during the 1996-1997 fishing 
season to evaluate the effectiveness of pingers at reducing incidental 
cetacean and strategic stock bycatch (Strategy #2; draft PCTRP, 1996). 
Moreover, the PCTRT recommended that if results from this experiment 
indicate that there is a downward trend in overall cetacean bycatch, 
NMFS should establish a mandatory fleetwide pinger requirement for all 
CA/OR DGN fishery vessels prior to the next fishing season (1997-1998) 
and continue to monitor the effectiveness of pingers at reducing 
bycatch.
    Between September 1996 and January 1997, NMFS and the fishery 
implemented a single-blind experiment through NMFS' Drift Gillnet 
Observer Program as recommended by the PCTRT (draft PCTRP, 1996). This 
experiment used pingers with the same sound characteristics as the 
pingers used in the New England sink gillnet fishery experiment (e.g., 
broadband signal centered on 10 kHz with a source level of 132 dB re 1 
Pa at 1 m) (PCTRP, 1996; NMFS, 1997a). Because preliminary results from 
this experiment indicated that the observed cetacean entanglement rate 
was almost four times greater for non-pinger sets than for those sets 
that used pingers, NMFS proposed that pingers be mandatory in its 
proposed rule to implement the PCTRP. However, NMFS stipulated that if 
final results from the experiment indicated that pingers were 
ineffective at reducing cetacean bycatch, the use of pingers would not 
be included in the final rule. NMFS also proposed to reconvene the 
PCTRT prior to publishing a final rule requiring the mandatory use of 
pingers in the CA/OR DGN fishery to solicit its input on whether 
pingers should be mandatory.
    Preliminary final results from the pinger experiment indicate that 
cetacean entanglement and pinger use is statistically dependent (Chi-
square test, p=0.006)(NMFS, unpublished data). Out of 420 observed sets 
during the pinger experiment, 25 sets were observed with cetacean 
entanglement; 4 of these sets had pingers and 21 did not have pingers. 
The odds of entanglement decrease from 0.099/set without pingers to 
0.022/set with pingers or a decrease of over 75 percent.
    Based on the dramatic results from the 1996/1997 pinger experiment, 
the Team recommended by consensus during its May 1997 meeting that the 
use of pingers be mandatory for all vessels in the CA/OR DGN fishery 
beginning in the 1997/1998 fishing season. Nevertheless, the team 
expressed concern about whether a sufficient supply of NMFS-approved 
pingers would be available at the start of the swordfish fishing season 
(August 15). At this time, NMFS is aware of only one manufacturer that 
produces a pinger consistent with the specifications in the final rule. 
This manufacturer is currently producing these pingers and they should 
be available by the effective date of this rule. In addition, 
information on the distribution of fishing effort in the CA/OR DGN 
fishery over the last few years indicates that the peak of fishing 
effort occurs after September 30 each year (CDFG unpublished data). 
Because cetacean entanglement is significantly correlated with fishing 
effort, the highest levels of incidental entanglement also occurs after 
September 30 (PCTRP, 1996). However, NMFS recognizes that vessel 
operators require sufficient notice to purchase pingers in advance of 
the date that pingers are required to be deployed. For these reasons, 
the pinger requirements described under section 229.31(c) will be 
effective for the 1997/1998 fishing season on October 30, 1997. During 
subsequent seasons (e.g., 1998/1999), pinger requirements will be 
mandatory during the entire fishing season.
    Although the Team concurred with the pinger specifications and 
configurations in the proposed rule, they suggested that the final rule 
include a mechanism to allow for limited experimentation with 
alternative pinger specifications and configurations in the fishery. 
The Team recommended that any pinger experiment undergo peer review and 
the experiment should not detract from the NMFS's CA/OR DGN fishery 
observer program or the fishery's requirements to meet bycatch 
reduction goals of the MMPA. The Team also suggested that new 
manufactures of pingers have their pinger ``certified'' by an 
independent company that they meet NMFS' pinger specifications.
    Under this final rule, pingers must be used on all vessels, during 
every set, and during the entire fishing season. A pinger is an 
acoustic deterrent device which, when immersed in water, broadcasts a 
sound frequency range of approximately 10 kHz at 132 dB re 1 
micropascal at 1 m with a pulse duration of 300 milliseconds and a 
pulse rate of 4 seconds. This rule also allows for limited 
experimentation in the fishery to test the effectiveness of pingers 
with alternative specifications and alternative pinger configurations 
on the net. Experimental protocols will undergo peer review to ensure 
scientific credibility. If better information on the hearing 
sensitivity of cetaceans incidentally taken in the CA/OR DGN fishery or 
if experimental results indicate that different pinger specifications/
configurations would be more effective at reducing cetacean bycatch, 
NMFS may require that different pingers be used in the fishery. At that 
time, NMFS would publish proposed pinger specifications and/or pinger 
configurations and provide opportunity for public comment. For the 
reasons described previously (see Responses to Comments section), the 
final rule does not require new manufactures of pingers to be 
``certified'' by an independent company

[[Page 51811]]

that their pingers meet the NMFS specifications under section 
229.31(c)(1).
    In order to better enforce the pinger requirement, the PCTRT 
recommended that NMFS require any driftnet vessel with swordfish or 
shark onboard to have pingers. Although NMFS agrees that drift gillnet 
vessels that are at sea should be required to have pingers onboard, it 
believes that pingers should be on the drift gillnet vessel at all 
times, even when no shark or swordfish are on the boat. Regardless of 
whether drift gillnet sets catch swordfish or shark, these sets may 
still incidentally entangle cetaceans. For these reasons, the final 
rule stipulates that anytime a CA/OR DGN fishery vessel is at sea with 
a multifilament drift gillnet onboard, the vessel must carry a 
sufficient number of pingers to meet the configuration requirements set 
forth under section 229.31(c)(3).

Voluntary Program To Reduce the Number of Gillnet Permits (Strategy 
#3)

    In August 1996, the PCTRT recommended two approaches for limiting 
the potential expansion of fishing effort by permit holders in 
California and Oregon (Strategy #3, draft PCTRP 1996). At its May 1997 
meeting, the Team continued to support its original recommendation 
under Strategy #3, but recommended that the language in the preamble be 
more consistent with the draft Plan. For example, in the preamble to 
the proposed rule NMFS states that it would encourage ODFW to continue 
issuing the same number of permits as were issued in 1996. However, the 
draft plan states that ODFW should be encouraged to issue a ``maximum 
of 10 permits each year.'' NMFS agrees and further clarifies that it 
was the intent of this recommendation that ODFW issue no more than 10 
permits each year. Furthermore, the preamble states that nearly a third 
of the drift gillnet permittees annually satisfy only the minimum CDFG 
requirements to keep their permits valid. The Team wanted NMFS to 
clarify that the draft Plan states that almost a third of CDFG 
permittees are relatively inactive, fishing on an extremely limited 
basis and only, apparently, to maintain their CDFG drift gillnet 
permit. NMFS concurs.

Skipper Education Workshops (Strategy #4)

    In August 1996, the PCTRT recommended that NMFS conduct mandatory 
skipper workshops on the components of the PCTRP, together with expert 
skipper panels, to further generate and consider potential, additional 
take reduction strategies (draft PCTRP, 1996). At its May 1997 meeting, 
the team concurred with the proposed rule's requirement that all vessel 
operators be required to attend a skipper workshop before initiating 
fishing each fishing season. However, to facilitate maximum compliance 
with the requirement during 1997, they recommended the language in the 
final rule indicate that for the 1997/1998 fishing season, skippers 
must have attended a workshop after the date of the last workshop to be 
offered this season (e.g., September 1997) before they continue fishing 
in 1997/1998. The language on subsequent year workshop requirements 
should remain as stated in the proposed rule. The Team included 
additional recommendations on the content of the workshops and 
recommended that NMFS not issue ``certificates of attendance'' to 
skippers that attend workshops, rather enforcement of the requirement 
should be conducted with workshop rosters.
    As recommended by the Team, NMFS conducted five skipper education 
workshops during June 3-10, 1997, in the following California 
locations: La Jolla, Long Beach, Morro Bay, Monterey, and Santa Rosa. 
Eighty-five fishers attended these voluntary workshops at no cost to 
the fishers. At the workshops, a presentation on the development and 
status of the PCTRP was provided. A demonstration on pingers was 
presented at the meeting along with a question/answer period. During 
the second part of the workshop, current fishing strategies employed by 
fishers to avoid marine mammal entanglement were discussed. This 
information will be provided to the Team at its next meeting as 
background for preparing additional take reduction strategies, if 
necessary. Workshop participants were also provided with a 
comprehensive guide to the identification of marine mammals to provide 
fishers with more information on the biology and behavior of marine 
mammals to assist their efforts in reducing bycatch. These guides will 
also improve the accuracy of species identification indicated on the 
mortality/serious injury reports fishers must submit to NMFS under its 
Marine Mammal Authorization Program (MMAP). NMFS expects to hold two 
additional workshops in September 1997 in Long Beach, CA, and Portland, 
OR. Vessel operators who attended June 1997 Skipper Education Workshops 
will not be required to attend an additional workshop before the 1997/
1998 fishing season.
    After notification by NMFS, this final rule requires all CA/OR DGN 
vessel operators to have attended one Skipper Education Workshop after 
all workshops have been convened by NMFS in September 1997. CA/OR DGN 
vessel operators are required to attend Skipper Education Workshops at 
annual intervals thereafter, unless that requirement is waived by NMFS. 
NMFS will provide sufficient advance notice to vessel operators by mail 
prior to convening workshops.

Contingency Measures Involving a Reduction in Fishing Effort

    The PCTRT strongly encouraged NMFS to modify the language in the 
preamble to make it consistent with the language in the draft Plan. 
NMFS agrees (see Responses to Comments section).

Other Team Recommendations

Mesh Size

    Although no significant statistical correlation with cetacean 
entanglement was found, the PCTRT continues to support its 
recommendation that vessel owners should be encouraged to convert to 20 
inch (50.8 cm) mesh when replacing old nets or panels, since the 
results indicate a trend in reduction of marine mammal bycatch. The 
PCTRT will continue to examine observer data to better understand the 
relationship between mesh size, inter-related net characteristics 
(e.g., twine size), and cetacean entanglement. NMFS agrees and 
recommended that fishers convert to 20 inch (50.8 cm) mesh when 
replacing nets or panels during NMFS'' June 1997 Skipper Education 
Workshops and will suggest the conversion during future workshops.

Observer Program

    In August 1996, the PCTRT recommended several measures to enhance 
the effectiveness of NMFS'' observer program, including: (1) Achieving 
20 percent observer coverage; (2) ensuring that the observer program is 
targeting all possible DGN vessels, including vessels that cannot carry 
an observer; and (3) ensuring that the observer program data collection 
be expanded to include several additional data variables (i.e., net and 
environmental characteristics) (draft PCTRP, 1996). At its May 1997 
meeting, the PCTRT continued to express concerns regarding the level of 
observer coverage and strongly recommended that NMFS achieve 20 percent 
observer coverage. The PCTRT emphasized that the observer program 
should re-evaluate its determinations of whether a vessel is 
``unobservable'' and should make an effort to observe the smaller boats 
that cannot accommodate an observer (via independent observation 
platforms).

[[Page 51812]]

NMFS should cross-reference CDFG permittee lists with MMAP information 
to ensure that all fishers who participate in the fishery are included 
in the program. The PCTRT also recommended that NMFS develop a 
reporting mechanism on observer data forms for expediting the 
enforcement of the requirements of the final rule because failure to 
comply with take reduction strategies could jeopardize the effort to 
reduce cetacean entanglement. All elements in the draft Plan regarding 
observer reporting forms should be included in the observer reporting 
forms for the next fishing season (1997/1998) and beyond (e.g., surface 
water temperature and cloud cover). The Team recommended that observers 
periodically check to determine if pingers are functioning.
    Since NMFS received the draft PCTRP (1996) in August 1996, it has 
implemented several of the suggestions from the PCTRT regarding the 
observer program. For example, the Southwest Region, NMFS, has 
reevaluated its previous determinations as to whether vessels are 
unobservable and has reviewed the CDFG permittee list. The Southwest 
Region has also incorporated the PCTRT's recommended changes to the 
observer data forms and observers will check whether pingers on 
observed sets are functioning. Furthermore, the goal of the CA/OR DGN 
fishery observer program is to observe 20 percent of the annual fishing 
effort and the program will continue to strive to achieve this coverage 
within the constraints of available funding. At this time, NMFS does 
not have the funding to operate an independent observer platform.

1998 Team Meeting

    The Team recommended that NMFS reconvene the Team in March 1998, 
preferably after the meeting of the Pacific Scientific Review Group. 
This would allow the PCTRT sufficient opportunity to review key 
information on the status of strategic stocks and integrate this 
information into its ongoing evaluation of the efficacy of Plan 
strategies. NMFS agrees and intends to reconvene the PCTRT in March 
1998 to monitor the implementation of the final PCTRP.

Other Comments

    NMFS received information after the close of the proposed rule's 
comment period, during the Skipper Education Workshops in June 1997, 
that suggested that a small portion of the CA/OR DGN fleet (e.g., 
approximately 10 vessels) uses fishing strategies or gear that may not 
require pingers to be placed on both the floatlines and leadlines. 
Specifically, this sector of the fleet: (1) Targets only thresher 
shark; (2) fishes in shallow water near the coast (e.g., 3-40 miles 
(4.83-64.36 km) from shore); (3) uses a smaller net (e.g., 600 fathoms 
(3600 ft or 1097 m) long, 45-80 meshes deep); (4) does not fish on a 
thermocline; (5) uses smaller boats (e.g., 30-40 ft (9.12-12.19 m) 
long); and (6) makes short trips (1-2 days). As a result, the commenter 
believes that they should be reclassified as a different fishery or 
only be required to place pingers on the floatline.
    Under section 118 of the MMPA, NMFS is required to reexamine, and 
after notice and opportunity for public comment, the classification of 
commercial fisheries on at least an annual basis. On May 27, 1997, NMFS 
published a proposed List of Fisheries for 1998 (62 FR 28657) and 
expects the final List of Fisheries to be published within a few 
months. NMFS will reexamine the categorization and definition of the 
CA/OR DGN fishery in 1998 when it annually reexamines its 
classification of fisheries. Furthermore, NMFS will request that the 
PCTRT at its next meeting evaluate whether certain vessels targeting 
only thresher shark should be classified as another fishery and/or have 
different requirements under the PCTRP (March 1998). At this time, NMFS 
is not modifying its final rule to establish separate requirements for 
vessels targeting thresher shark. NMFS' Changes to the Draft Plan, 1997 
PCTRT Recommendations, and Changes to the Proposed Rule to Implement 
the Plan.
    NMFS adopts the draft plan as submitted by the PCTRT (PCTRP, 1996) 
and recommendations from the 1997 PCTRT meeting (PCTRT, 1997), except 
for the following minor changes. NMFS has determined that 
implementation of the take reduction plan, as modified, and 
implementation of this final rule is expected to reduce, within 6 
months of its implementation, mortalities and serious injuries of all 
strategic stocks that are taken by the CA/OR drift gillnet fishery to 
below the PBR level for each stock.
    The PCTRT recommended that if the results from a pinger experiment 
indicate pingers are effective at reducing cetacean bycatch, then the 
use of pingers should be mandatory. In contrast, before final results 
from the 1996/1997 pinger experiment in the CA/OR DGN fishery were 
available, NMFS proposed the mandatory use of pingers in the proposed 
rule to implement the PCTRP. This final rule requires the use of 
pingers in the fishery.
    The PCTRT recommended during its 1997 meeting that NMFS require any 
driftnet vessel with swordfish or shark on board to have pingers. Under 
the proposed rule and this final rule, pingers are required to be on 
the vessel at all times when the vessel is at sea, even when no shark 
or swordfish are on the boat.
    The team recommended that pingers be required in the fishery by 
August 15, 1997. The proposed rule did not specify a certain date that 
pingers would be required. The final rule requires the use of pingers 
by vessels in the CA/OR DGN fishery to be effective for the 1997/1998 
fishing season 30 days after filing of this final rule for public 
inspection at the Office of the Federal Register. During subsequent 
seasons (e.g., 1998/1999), pinger requirements will be mandatory during 
the entire fishing season.
    The draft PCTRP (1996) and proposed rule stipulated that pingers 
must be attached on both the floatline and leadline and spaced no more 
than 300 ft (91.44 m) apart, in order to insure that the pingers were 
broadcasting sound over the entire area of the net. During the pinger 
experiment, pingers were attached to the floatlines and leadlines with 
approximately 1 and 6 ft (0.30 and 1.82 m) lanyards, respectively. 
Results from this experiment indicate that attaching pingers directly 
to buoy lines (i.e., extenders) may be a more efficient attachment 
method because it would facilitate pinger attachment. Pingers attached 
in this manner would not require individual attachment and removal to 
and from the floatline during each set, because this would 
automatically occur during routine extender attachment/removal. For 
example, if extenders were attached to the net at 100 ft (30.48 m) 
intervals, one pinger could be attached to every third extender and the 
300 ft (91.44 m) spacing requirement would be maintained. For these 
reasons, the final rule authorizes the placement of pingers on 
extenders as long as the 300 ft (91.44 m) spacing requirement is 
maintained near the floatline and pingers are no more than 3 ft above 
the floatline. In addition, this final rule authorizes pingers to be 
attached to the leadline with lanyards that are up to 6 ft (1.83 m) in 
length.
    Deployment of pingers during the 1996/1997 pinger experiment 
demonstrated that pinger performance is dependent on following 
manufacturer's operating instructions and minimizing exposure of 
battery packs to saltwater. For example, during the first few weeks of 
the pinger experiment, silicon grease was not applied to O-rings prior 
to pinger placement which resulted in a limited number of pingers 
leaking and becoming nonfunctional. Also, because

[[Page 51813]]

the pingers used in the experiment were not designed with on/off 
switches, the experimental protocol included the removal of battery 
packs after each set to preserve battery life. This procedure greatly 
increased the probability that the pinger battery packs would be 
exposed to saltwater and malfunction. However, NMFS found that battery 
life is much longer than originally estimated and does not foresee the 
need to remove the batteries after every set. Reducing battery exposure 
to saltwater will substantially decrease pinger malfunction. For these 
reasons, NMFS recommends that if drift gillnet fishers use pingers that 
do not have on/off switches, fishers follow manufacturer's deployment 
instructions closely and minimizing the frequency of battery pack 
removal (i.e., just keep them pinging for the entire trip) to reduce 
its potential exposure to seawater and possible pinger malfunction.
    The PCTRT recommended during its 1997 meeting that NMFS require any 
manufacturer of pingers to provide independent certification that a new 
prototype meets the specifications under Sec. 229.31(c)(1). The PCTRT 
made this recommendation because it thought the definition of the term 
``NMFS-approved pinger'' was unclear in the proposed rule. Although the 
proposed rule described the sound specifications for pingers, NMFS 
agrees that the term ``NMFS-approved'' was unclear. Nevertheless, NMFS 
does not agree that manufacturers should be required to have an 
``independent company'' certify that new prototype pingers meet the 
pinger specifications under Sec. 229.31(c)(1); most manufacturers have 
the equipment and expertise to test pinger sound characteristics. Of 
course, manufactures of new pinger prototypes will need to provide 
documentation that their pingers meet the specifications of the final 
rule. For these reasons, any reference to the term ``NMFS-approved'' 
has been removed from the final rule; in addition, the final rule does 
not require that manufacturers of new prototype pingers have an 
``independent company'' certify that their pingers meet the 
specification under Sec. 229.31(c)(1).

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule will not have a 
significant economic impact on a substantial number of small entities. 
No comments were received during the public comment period regarding 
this certification. As a result, no final regulatory flexibility 
analysis has been prepared.
    The Assistant Administrator for Fisheries, NOAA (AA) has 
determined, based on an EA prepared under the National Environmental 
Policy Act, that implementation of these regulations would not have a 
significant impact on the human environment. As a result of this 
determination, an environmental impact statement is not required. A 
copy of the EA prepared for this rule is available upon request (see 
ADDRESSES).
    This rule has been determined to not be significant for purposes of 
E.O. 12866.

References

Barlow, J., R.L. Brownell Jr., D.P. DeMaster, K.A. Forney, M.S. 
Lowry, S. Osmek, T.J. Ragen, R.R. Reeves, and R.J. Small. 1995. U.S. 
Pacific Marine Mammal Stock Assessments. NOAA Technical Memorandum 
NMFS, NOAA-TM-NMFS-SWFSC-219. 162 p.
NMFS. 1997a. Draft Environmental Assessment: Use of Acoustic Pingers 
as a Management Measure in Commercial Fisheries to Reduce Marine 
Mammal Bycatch. NMFS, Office Of Protected Resources, Silver Spring, 
MD.
NMFS. 1997b. Environmental Assessment: Final Regulations to 
Implement the Pacific Offshore Cetacean Take Reduction Plan, Under 
Section 118 of the Marine Mammal Protection Act. August 1997.
PCTRP. 1996. Final Draft, Pacific Offshore Cetacean Take Reduction 
Plan. Draft plan submitted to the National Marine Fisheries Service 
and prepared by the Pacific Cetacean Take Reduction Team. August 
1995. 75 p.
PCTRT. 1997. 1997 Recommendations Report: Pacific Offshore Cetacean 
Take Reduction Team. July 1997. 5 p.
PSRG. 1997. Recommendations of the Pacific Scientific Review Group 
from the May 1997 meeting. Unpublished document.
Reeves, R.R., R.J. Hofman, G.K. Silber, D. Wilkinson. 1996. Acoustic 
Deterrence of Harmful Marine Mammal-Fishery Interactions: 
Proceedings of a Workshop held in Seattle, Washington, 20-22 March 
1996. NOAA Technical Memorandum, NMFS-OPR-10. 70 p.

List of Subjects in 50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

    Dated: September 16, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries.

    For the reasons set out in the preamble, 50 CFR part 229 is amended 
as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for part 229, subpart C continues to read 
as follows:

    Authority: 16 U.S.C. 1361 et seq.

    2. In subpart C, Sec. 229.31 is added to read as follows:


Sec. 229.31  Pacific Offshore Cetacean Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b) 
through (d) of this section apply to all U.S. drift gillnet fishing 
vessels operating in waters seaward of the coast of California or 
Oregon, including adjacent high seas waters. For purposes of this 
section, the fishing season is defined as beginning May 1 and ending on 
January 31 of the following year.
    (b) Extenders. Extenders (buoy lines) of at least 6 fathoms (36 ft; 
10.9 m) must be used on all sets.
    (c) Pingers. (1) For the purposes of this paragraph (c), a pinger 
is an acoustic deterrent device which, when immersed in water, 
broadcasts a 10 kHz (<plus-minus> 2 kHz) sound at 132 dB (<plus-minus> 
4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15 
milliseconds), and repeating every 4 seconds (+ .2 seconds); and 
remains operational to a water depth of at least 100 fathoms (600 ft or 
182.88 m).
    (2) Pingers must be used on all vessels, during every set beginning 
October 30, 1997. While at sea, drift gillnet vessels with 
multifilament gillnets onboard must carry enough pingers to meet the 
configuration requirements set forth under paragraph (c)(3) of this 
section.
    (3) Pingers must be attached on or near the floatline and on or 
near the leadline and spaced no more than 300 ft (90.9 m) apart. 
Pingers attached on extenders, or attached to the floatline with 
lanyards, must be within 3 ft (0.91 m) of the floatline. Pingers 
attached with lanyards to the leadline must be within 6 ft (1.82 m) of 
the leadline. Pingers on or near the floatline and on or near the 
leadline must be staggered, such that the horizontal distance between a 
pinger on or near the floatline and a pinger on the leadline is no more 
than 150 ft (45.5 m). Any materials used to weight pingers must not 
change its specifications set forth under paragraph (c)(1) of this 
section.
    (4) The pingers must be operational and functioning at all times 
during deployment.

[[Page 51814]]

    (5) If requested, NMFS may authorize the use of pingers with 
specifications or pinger configurations differing from those set forth 
in paragraphs (c)(1) and (c)(3) of this section for limited, 
experimental purposes within a single fishing season.
    (d) Skipper education workshops. After notification from NMFS, 
vessel operators must attend a skipper education workshop before 
commencing fishing each fishing season. For the 1997/1998 fishing 
season, all vessel operators must have attended one skipper education 
workshop by October 30, 1997. NMFS may waive the requirement to attend 
these workshops by notice to all vessel operators.

[FR Doc. 97-26330 Filed 9-30-97; 4:50 pm]
BILLING CODE 3510-22-P