Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations 51805

(S–80), Department of Transportation,

400 Seventh Street, S.W., Washington,

DC 20590.

* * * * *

Dated: July 30, 1997.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97–26198 Filed 10–2–97; 8:45 am]

BILLING CODE 4910–62–P

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,

§ 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 humancaused 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 depthof-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
51806 Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations

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 depthof-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.
Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations 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-NMFSapproved 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
51808 Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations

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 unlimitedlandings 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 buyback 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.
Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations 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
51810 Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations 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).
51812 Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations 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 § 229.31(c)(1). The PCTRT made

this recommendation because it thought

the definition of the term ‘‘NMFSapproved 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

§ 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 § 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, § 229.31 is added to

read as follows:

§ 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

(± 2 kHz) sound at 132 dB (± 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.
51814 Federal Register / Vol. 62, No. 192 / Friday, October 3, 1997 / Rules and Regulations

(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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 961227373–6373–01; I.D.

092597A]

Fisheries Off West Coast States and in

the Western Pacific; Pacific Coast

Groundfish Fishery; Trip Limit

Changes

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Fishing restrictions; request for

comments.

SUMMARY: NMFS announces further

adjustments to the Pacific Coast

groundfish limited entry fisheries for

the Sebastes complex and its

components canary and yellowtail

rockfish, the Dover sole-thornyheadtrawl sablefish (DTS) complex and its

components Dover sole and trawlcaught sablefish, and announces the

final 1997 cumulative trip limit period

for trawl vessels in the ‘‘B’’ platoon.

NMFS also announces an increase to the

monthly cumulative limit for the open

access nontrawl sablefish fishery north

of 36° N. lat. (A similar change for the

limited entry nontrawl sablefish fishery

north of 36° N. lat. is included in a

separate Federal Register action that

announces the duration and limit of the

limited entry sablefish mop-up fishery.)

These restrictions are intended to keep

landings as close as possible to the 1997

harvest guidelines and allocations for

these species, and to provide

management flexibility during the final

months of the year.

DATES: Effective at 0001 hours local time

(l.t.) October 1, 1997; except for the trip

limit for trawl vessels operating in the

B platoon, which will become effective

at 0001 hours l.t. October 16, 1997.

These changes remain in effect, unless

modified, superseded or rescinded,

until the effective date of the 1998

annual specifications and management

measures for the Pacific Coast

groundfish fishery, which will be

published in the Federal Register.

Comments will be accepted through

October 20, 1997.

ADDRESSES: Submit comments to

William Stelle, Jr., Administrator,

Northwest Region (Regional

Administrator), NMFS, 7600 Sand Point

Way NE., Seattle, WA 98115–0070; or

William Hogarth, Acting Administrator,

Southwest Region, NMFS, 501 West

Ocean Blvd., Suite 4200, Long Beach,

CA 90802–4213.

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at 206–526–6140

or Rodney McInnis at 562–980–4040.

SUPPLEMENTARY INFORMATION: The

following changes to current

management measures are based on the

best available information, and were

recommended by the Pacific Fishery

Management Council (Council), in

consultation with the states of

Washington, Oregon, and California, at

its September 9–12, 1997, meeting in

Portland, OR.

The Sebastes Complex. The Sebastes

complex consists of all rockfish

managed by the FMP except Pacific

ocean perch (POP), widow rockfish,

shortbelly rockfish, and thornyheads.

The limited entry fishery for the

Sebastes complex currently is managed

under a 2-month cumulative trip limit

of 30,000 lb (13,608 kg) north of Cape

Mendocino (40°30’ N. lat.) and 150,000

lb (68,039 kg) south of Cape Mendocino.

Within these 2-month cumulative limits

for the Sebastes complex, no more than

6,000 lb (2,722 kg) may be yellowtail

rockfish north of Cape Mendocino, no

more than 10,000 lb (4,534 kg) may be

bocaccio south of Cape Mendocino, and

no more than 14,000 lb (6,350 kg) may

be canary rockfish coastwide.

The best available information at the

September 1997 Council meeting

indicated that both yellowtail rockfish

and canary rockfish would be 18–19

percent below their respective harvest

guidelines at the end of the year.

Therefore, the Council recommended

increasing the trip limits for these

species, and converting those limits

from 2-month to 1-month limits on

October 1, 1997, so that the industry

could receive immediate benefit from

the higher limits. The new 1-month

cumulative trip limits for the Sebastes

complex are: 20,000 lb (9,072 kg) north

of Cape Mendocino and 75,000 lb

(33,975 kg) south of Cape Mendocino.

Within these 1-month cumulative limits

for the Sebastes complex, no more than

5,000 lb (2,268 kg) may be yellowtail

rockfish north of Cape Mendocino, no

more than 5,000 lb (2,268 kg) may be

bocaccio south of Cape Mendocino, and

no more than 10,000 lb (4,534 kg) may

be canary rockfish coastwide.

As these changes are implemented in

the middle of a 2-month cumulative trip

limit period (September-October 1997),

both the 2-month cumulative trip limits

and the 60 percent monthly limits for

the Sebastes complex and its

components become obsolete after

October 1. POP and widow rockfish are

the only two species that remain under

2-month cumulative limits. (The DTS

complex was converted to monthly

limits on September 1, 1997 (62 FR

36228, July 7, 1997).)

Dover Sole, Thornyheads, and TrawlCaught Sablefish (the DTS Complex).

The limited entry fishery for the DTS

complex and its components currently

is managed under a 1-month cumulative

trip limit of 28,500 lb (12,927 kg) north

of Cape Mendocino and 50,000 lb

(22,680 kg) south of Cape Mendocino.

Within these 1-month cumulative

limits, no more than 15,000 lb (6,804 kg)

may be Dover sole north of Cape

Mendocino, no more than 6,000 lb

(2,722 kg) may be sablefish coastwide,

and no more than 7,500 lb (3,402 kg)

may be thornyheads coastwide. No more

than 1,500 lb (680 kg) of the

thornyheads may be shortspine

thornyheads.

The best available information at the

September 1997 Council meeting

indicated that the harvest guidelines for

Dover sole would be reached before the

end of the year, and exceeded by 19

percent in the Columbia area and 7

percent coastwide if the rate of landings

is not slowed. Landings of trawl-caught

sablefish also were projected to exceed

the limited entry trawl allocation by 9

percent by the end of the year.

Landings of both species of

thornyheads are projected to be lower

than their respective harvest guidelines.

The two thornyhead species are often

caught together. Landings of longspine

thornyheads are projected to be 28

percent below its harvest guideline by

the end of the year; but, trip limits for

this species could not be increased

without increasing the catch of

shortspine thornyheads, which are

expected to be 7 percent below its

1,380–mt harvest guideline but well

above the 1,000–mt acceptable

biological catch for this species. Because