Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations 13355 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080612764–9304–02] 

RIN 0648–AW94 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Fisheries 

of the Bering Sea and Aleutian Islands 

Management Area and Gulf of Alaska, 

Seabird Avoidance Requirements 

Revisions for International Pacific 

Halibut Commission Regulatory Area 

4E 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues a final rule that 

revises the seabird avoidance 

requirements for the hook–and–line 

groundfish and halibut fisheries in 

International Pacific Halibut 

Commission Area 4E. The final rule 

eliminates seabird avoidance 

requirements for hook–and–line vessels 

less than or equal to 55 ft (16.8 m) 

length overall in portions of Area 4E in 

the eastern Bering Sea. This action is 

necessary to revise seabird avoidance 

measures based on the latest scientific 

information and to reduce unnecessary 

regulatory burdens and associated costs. 

DATES: Effective April 27, 2009. 

ADDRESSES: Copies of the map of the 

seabird avoidance measures in Area 4E, 

and the Environmental Assessment/ 

Regulatory Impact Review/Final 

Regulatory Flexibility Analysis (EA/ 

RIR/FRFA) for this action may be 

obtained from NMFS Alaska Region, 

P.O. Box 21668, Juneau, AK 99802, 

Attn: Ellen Sebastian or from the Alaska 

Region NMFS website at http:// 

www.alaska fisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Melanie Brown, 907–586–7228. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone (EEZ) off Alaska are 

managed under the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area and the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (FMPs). The North 

Pacific Fishery Management Council 

(Council) prepared the FMPs under the 

authority of the Magnuson–Stevens 

Fishery Conservation and Management 

Act (Magnuson–Stevens Act), 16 U.S.C. 

1801, et seq. Regulations implementing 

the FMPs appear at 50 CFR part 679. 

General regulations governing U.S. 

fisheries also appear at 50 CFR part 600. 

Management of the Pacific halibut 

fisheries in and off Alaska is governed 

by an international agreement between 

Canada and the United States. This 

agreement, entitled the ‘‘Convention 

Between the United States of America 

and Canada for the Preservation of the 

Halibut Fishery of the Northern Pacific 

Ocean and Bering Sea’’ (Convention), 

was signed at Ottawa, Canada, on March 

2, 1953, and was amended by the 

‘‘Protocol Amending the Convention,’’ 

signed at Washington, D.C., March 29, 

1979. The Convention is implemented 

in the United States by the Northern 

Pacific Halibut Act of 1982 (Halibut 

Act). The directed commercial Pacific 

halibut fishery in Alaska is managed 

under an individual fishing quota (IFQ) 

program, as is the fixed gear sablefish 

fishery. The IFQ Program is a limited 

access management system. This 

program is codified at 50 CFR part 679. 

Background 

The purpose of this action is to revise 

the seabird avoidance measures 

currently implemented for the hook– 

and–line groundfish and halibut 

fisheries based on the best available 

information regarding seabird 

occurrence and potential fishing vessel 

interactions. Seabird avoidance 

measures reduce the incidental 

mortality of seabirds in the hook–and– 

line fisheries off Alaska. Since 1997, 

NMFS has implemented and revised 

seabird avoidance measures to mitigate 

interactions between the federal hook– 

and–line fisheries and seabirds (62 FR 

23176, April 29, 1997; 63 FR 11161, 

March 6, 1998; 69 FR 1930, January 13, 

2004; and 72 FR 71601, December 18, 

2007). 

A detailed description of the 

information used to support this action, 

map of the area, and the reasons for the 

specific details of the regulatory 

amendments are in the proposed rule 

(74 FR 2984, January 16, 2009). The map 

is reproduced in this rule (See Figure 1). 

Regulatory Amendments 

In June 2008, the Council 

unanimously recommended revisions to 

the seabird avoidance measures in a 

portion of Area 4E. These measures 

apply to operators of vessels using 

hook–and–line gear for Pacific halibut 

in the IFQ and Community 

Development Quota (CDQ) management 

programs in waters from 0 nm to 200 

nm; for IFQ sablefish in waters from 0 

nm to 200 nm; and for groundfish in the 

EEZ. 

This final rule reorganizes and revises 

§ 679.24(e)(3) and Table 20 to part 679 

to clarify existing regulatory text and to 

eliminate unnecessary seabird 

avoidance gear requirements for all 

hook–and–line vessels less than or 

equal to 55 ft (16.8 m) LOA fishing in 

Area 4E, except in the southern portion 

of Area 4E as shown in Figure 1. Hook– 

and–line vessels fishing in the portion 

of Area 4E south of 60 degrees N 

latitude and west of 160 degrees W 

longitude continue to be required to use 

seabird avoidance measures. 


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13356 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Rules and Regulations 

Figure 1. International Pacific Halibut 

Commission Regulatory Area 4E is shown as 

the striated area. 

Notes: Hook–and–line vessels > 26 ft (7.9 

m) LOA fishing in the shaded portion of the 

striated area are required to continue using 

seabird avoidance measures. In the striated 

area of Area 4E, vessels > 26 ft (7.9 m) to 55 

ft (16.8 m) are exempt from seabird 

avoidance measures, and vessels > 55 ft (16.8 

m) continue to use seabird avoidance 

measures. Vessels ≤ 26 ft (7.9 m) continue to 

be exempt from seabird avoidance measures 

throughout all of Area 4E. 

The best available scientific 

information regarding seabird 

observations in the Area 4E indicates 

that ESA–listed seabirds and other 

seabird species of concern are not likely 

to occur in Area 4E, except for the 

southern portion where seabird 

avoidance measures continue to be 

required. Therefore, the final rule 

eliminates seabird avoidance measures 

where interactions with seabird species 

of concern are not likely to occur and 

ensures that such measures are used in 

waters where interactions with seabird 

species of concern are likely to occur. 

Table 19 to part 679 also is revised to 

correct cross references. Under the 

descriptions for the seabird avoidance 

gear and other methods, the reference to 

§ 679.24(e)(5) is corrected to read 

§ 679.24(e)(4). 

Comments and Responses 

NMFS received no comments on the 

proposed rule (74 FR 2984, January 16, 

2009). No substantive changes were 

made in the final rule from the proposed 

rule. Minor editorial changes were made 

to Tables 19 and 20 and to 

§ 679.24(e)(3)(i). 

Classification 

The Administrator, Alaska Region, 

NMFS, determined that the final rule is 

necessary for the conservation and 

management of the groundfish fisheries 

and that it is consistent with the 

Magnuson–Stevens Act, the Halibut Act, 

and other applicable laws. 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared. The FRFA 

describes the economic impact of this 

final rule on small entities. The FRFA 

incorporates the initial regulatory 

flexibility analysis (IRFA), a summary of 

the significant issues raised by the 

public comments in response to the 

IRFA, NMFS’ responses to those 

comments, and a summary of the 

analyses completed to support the 

action. Descriptions of the action, the 

reasons it is under consideration, and its 

objectives and legal basis are included 

earlier in the preamble and in the 

SUMMARY section of the preamble. A 

copy of the FRFA is available from 

NMFS (see ADDRESSES). 

The IRFA was described in the 

classification section to the proposed 

rule (74 FR 2984, January 16, 2009), and 

the public was notified of how to obtain 

a copy of the IRFA. The public comment 

period ended on February 17, 2009. No 

comments were received on the IRFA or 

on the economic impacts of the rule. 

The vessels that fish for groundfish or 

halibut with hook–and–line gear in the 

waters off Alaska would be directly 

regulated by this action. The seabird 

avoidance measures presently in place, 

and the alternatives and options 

considered, apply directly to the 

operator of a vessel deploying hook– 

and–line gear in the waters off Alaska. 


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These regulations apply to the operation 

of a vessel and not directly to the 

halibut or sablefish IFQ–holder unless 

the holder is also the owner/operator of 

a vessel. Multiple IFQs may be used on 

a single vessel. Thus, the IRFA analysis 

of large and small entities is conducted 

at the vessel level and not the IFQ level. 

This analysis is complicated by the fact 

that the halibut fishery is managed 

somewhat separately from the Federal 

groundfish fisheries, resulting in 

multiple data sources being synthesized 

for the analysis. Thus, data from 

multiple sources and years have been 

used to estimate the numbers of large 

and small entities. 

Approximately 70 vessels ranging 

between 26 ft (7.9 m) and 55 ft (16.8 m) 

LOA, participated in the CDQ Pacific 

halibut fishery in Area 4E. The 70 

vessels that fished in the CDQ halibut 

fishery in Area 4E are mostly small 

vessels, 66 are less than 33 ft (10.1 m) 

LOA. These small vessels fish in the 

salmon and herring fisheries in the 

Bristol Bay and Togiak Bay areas of 

Alaska. None of the 70 vessels harvest 

groundfish in other Federal fisheries; 

thus, comprehensive annual revenue 

data are not available for these vessels 

in the way that they are for vessels that 

participate in Federal groundfish 

fisheries. However, given the small size 

of these vessels and the small scale of 

the fisheries they participate in, it is not 

expected that any of these vessels would 

earn more than $4 million in annual 

revenue. Thus, these 70 vessels are 

believed to be small entities, as defined 

by Small Business Administration 

criteria. 

Comprehensive annual revenue data, 

from all sources, are available for the 92 

vessels that participated in the Federal 

hook–and–line groundfish fisheries in 

the Bering Sea and Aleutian Islands 

management area in 2006. In 2006, 52 

hook and line catcher vessels (CVs) and 

6 hook–and–line catcher processors 

(CPs) reported that they caught and 

processed less than $4 million in gross 

ex–vessel or gross first wholesale 

product value. Thus, these 58 vessels 

are considered small entities. 

In total, this analysis has identified 

128 vessels that are believed to be 

directly regulated small entities. A 

review of American Fisheries Act (AFA) 

permit data revealed that none of the 

128 vessels with gross revenue less than 

$4 million in 2006 are AFA–permitted 

vessels. Because AFA affiliations are 

relatively stable across years, none of 

these vessels are large because of AFA 

affiliations. 

This regulation does not impose new 

recordkeeping and reporting 

requirements on the regulated small 

entities. 

The FRFA did not reveal any Federal 

rules that duplicate, overlap, or conflict 

with the action. 

The Council considered four 

alternatives and two options for this 

action. Alternative 1 is the status quo, 

which would require the continued use 

of seabird avoidance measures for all 

hook–and–line vessels fishing for 

groundfish or halibut in the federal 

waters of Area 4E. This alternative 

would not provide economic relief; and 

therefore, does not meet the objectives 

of this action. 

Alternative 2 would exempt hook– 

and–line vessels 26 ft (7.9 m) to 32 ft 

(9.8 m) LOA from seabird avoidance 

measures while fishing for groundfish or 

halibut in Area 4E. This alternative 

would provide economic relief only to 

vessels in this size class, partially 

meeting the objectives of the action for 

the hook–and–line fleet. 

Alternative 3 (preferred) exempts 

hook–and–line vessels 26 ft (7.9 m) to 

55 ft (16.8 m) LOA from seabird 

avoidance measures while fishing for 

groundfish or halibut in Area 4E. This 

alternative provides more economic 

relief to the hook–and–line fleet than 

Alternatives 1 and 2. 

Alternative 4 would exempt all hook– 

and–line vessels from seabird avoidance 

measures while fishing for groundfish or 

halibut in Area 4E. This alternative 

would provide the most economic relief 

to the hook–and–line fleet compared to 

the other alternatives, but the economic 

relief in comparison to Alternative 3 is 

not likely a large difference. Very few 

vessels over 55 ft (16.8 m) LOA 

participate in the hook–and–line fishery 

in Area 4E, and the larger vessels have 

the capability to use seabird avoidance 

gear based on larger deck space, 

adequate superstructure, and available 

crew. 

Two options were also considered for 

this action. Option 1 (preferred) requires 

full compliance with the seabird 

avoidance measures inside the shaded 

portion of Area 4E, as shown in Figure 

1 of the proposed rule (74 FR 2984, 

January 16, 2009), while option 2 would 

require only the use of a buoy bag in the 

shaded area. Option 1 would require 

more costs to deploy seabird avoidance 

gear that meets the streamer standards 

than option 2, which required a buoy 

bag with no standards and no 

supporting superstructure for streamer 

lines. Because the buoy bag is not likely 

as effective as the streamer lines, option 

1 is more protective of short–tailed 

albatross and other seabirds that may 

occur in the shaded area shown in 

Figure 1. 

The preferred action is Alternative 3 

with option 1, which provides more 

economic relief than Alternatives 1 or 2 

with option 1. Alternative 3 and option 

1 were selected because most of the 

vessels participating in the hook–and– 

line fishery in Area 4E are less than 55 

ft (16.8 m) LOA. The use of seabird 

avoidance gear on these vessels can be 

difficult because of limited deck space 

for the gear or the lack of superstructure 

to support the streamer lines. Smaller 

vessels also are likely to have fewer 

crew members available to handle the 

gear. Only Alternative 4 has smaller 

economic impacts on the directly 

regulated small entities than Alternative 

3. Because very few large vessels 

participate in the Area 4E fishery, 

Alternative 4 is not likely to provide 

much more economic relief than 

Alternative 3. Alternative 4 was not 

chosen because larger vessels are more 

likely to have adequate deck space, 

superstructure, and crew available to 

allow for safe and effective use of 

seabird avoidance gear. Because of the 

presence of short–tailed albatross in the 

shaded area of Figure 1, the Council 

recommended option 1 for vessels 

fishing in this area to ensure the 

continued protection of short–tailed 

albatross from potential incidental takes 

by any hook–and–line vessel. Option 1 

has a marginally greater potential 

adverse economic impact on directly 

regulated small entities than does 

option 2, but option 1 more fully 

achieves the objectives of the action and 

is necessary for the protection of short– 

tailed albatross and other seabirds that 

may occur in the shaded area of Figure 

1 of the proposed rule, making it more 

compliant with other applicable law 

(e.g., Endangered Species Act). 

Small Entity Compliance Guide 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 states that, for each rule or group 

of related rules for which an agency is 

required to prepare a FRFA, the agency 

shall publish one or more guides to 

assist small entities in complying with 

the rule, and shall designate such 

publications as ‘‘small entity 

compliance guides.’’ The agency shall 

explain the actions a small entity is 

required to take to comply with a rule 

or group of rules. As part of this 

rulemaking process, NMFS Alaska 

Region has developed a website that 

provides easy access to details of this 

final rule, including links to the final 

rule, sources for seabird avoidance gear, 

and a history of seabird avoidance 

measures in the Alaska fisheries. The 

relevant information available on the 

website is the Small Entity Compliance 


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Guide. The website address is http:// 

www.fakr.noaa.gov/protectedresources/ 

seabirds.htm. Copies of this final rule 

are available upon request from the 

NMFS, Alaska Regional Office (see 

ADDRESSES). 

An informal consultation with the U. 

S. Fish and Wildlife Service (FWS) 

under the Endangered Species Act was 

concluded for this action on September 

15, 2008. As a result of the informal 

consultation, NMFS determined that 

fishing activities under this rule are not 

likely to adversely affect endangered or 

threatened species or their designated 

critical habitat. The FWS concurred 

with this determination. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Recordkeeping and 

reporting requirements. 

Dated: March 23, 2009. 

John Oliver 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For reasons set out in the preamble, 

NMFS amends 50 CFR part 679 as 

follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 1. The authority citation for part 679 

continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1801 et 

seq.; 3631 et seq.; Pub. L. 108 447. 

■ 2. In § 679.24, redesignate paragraphs 

(e)(3)(i) and (e)(3)(ii) as paragraphs 

(e)(3)(ii) and (e)(3)(iii), respectively; add 

new paragraph (e)(3)(i); and revise 

paragraph (e)(3) introductory text to 

read as follows: 

§ 679.24 Gear limitations. 

* * * * * 

(e) * * * 

(3) Seabird avoidance gear 

requirements. (See also Table 20 to this 

part.) 

(i) The operator of a vessel identified 

in paragraph (e)(1) of this section must 

comply with paragraph (e)(3)(ii) or 

(e)(3)(iii) of this section while fishing 

with hook–and–line gear for groundfish, 

IFQ halibut, CDQ halibut, or IFQ 

sablefish in Federal waters (EEZ) and for 

IFQ halibut, CDQ halibut, or IFQ 

sablefish in the State of Alaska waters, 

excluding fishing in: 

(A) NMFS Reporting Area 649 (Prince 

William Sound); 

(B) State waters of Cook Inlet; 

(C) NMFS Reporting Area 659 

(Eastern GOA Regulatory Area; 

Southeast Inside District), but including 

waters in the areas south of a straight 

line at 56°17.25 N. lat. between Point 

Harris and Port Armstrong in Chatham 

Strait, State statistical areas 325431 and 

325401, and west of a straight line at 

136°21.17 E. long. from Point 

Wimbledon extending south through the 

Inian Islands to Point Lavinia; and 

(D) Area 4E with a vessel less than or 

equal to 55 ft (16.8 m) LOA, but 

including fishing in waters south of 

60°00.00 N. lat. and west of 160°00.00 

W. long. 

* * * * * 

■ 3. Tables 19 and 20 to part 679 are 

revised to read as follows: 

TABLE 19 TO PART 679—SEABIRD

AVOIDANCE GEAR CODES

VESSEL LOGBOOK 

CODE SEABIRD AVOIDANCE GEAR 

OR METHOD. 

1 Paired Streamer Lines: Used during deployment of hook–and–line 

gear to prevent birds from taking 

hooks. Two streamer lines used, 

one on each side of the main 

groundline. Each streamer line 

consists of three components: a 

length of line, streamers attached 

along a portion of the length and 

one or more float devices at the 

terminal end. See performance 

and material standards at 

§ 679.24(e)(4)(iii). 

2 Single Streamer Line: Used during 

deployment of hook–and–line gear 

to prevent birds from taking 

hooks. The streamer line consists 

of three components: a length of 

line, streamers attached along a 

portion of the length and one or 

more float devices at the terminal 

end. See performance and material standards at § 679.24(e)(4)(ii). 

3 Single Streamer Line, used with 

Snap Gear: Used during the deployment of snap gear to prevent 

birds from taking hooks. The 

streamer line consists of three 

components: a length of line, 

streamers attached along a portion of the length and one or more 

float devices at the terminal end. 

See performance and material 

standards at § 679.24(e)(4)(iv). 

TABLE 19 TO PART 679—SEABIRD

AVOIDANCE GEAR CODES—Continued 

VESSEL LOGBOOK 

CODE SEABIRD AVOIDANCE GEAR 

OR METHOD. 

4 Buoy Bag Line: Used during the 

deployment of hook–and–line gear 

to prevent birds from taking 

hooks. A buoy bag line consists of 

two components: a length of line 

(without streamers attached) and 

one or more float devices at the 

terminal end. See performance 

and material standards at 

§ 679.24(e)(4)(i). 

Other Device used in conjunction with Single Streamer Line or Buoy Bag Line 

5 Add weights to groundline: Applying weights to the groundline for 

the purpose of sinking the hook– 

and–line gear more quickly and 

preventing seabirds from accessing the baited hooks. 

6 Additional Buoy Bag Line or Single Streamer Line: Using a second buoy bag line or streamer line 

for the purpose of enhancing the 

effectiveness of these deterrent 

devices at preventing seabirds 

from accessing baited hooks. 

7 Strategic Offal Discharge: Discharging fish, fish parts (i.e., offal) 

or spent bait for the purpose of 

distracting seabirds away from the 

main groundline while setting 

gear. 

Additional Device Used 

8 Night Fishing: Setting hook–and– 

line gear during dark (night time 

hours). 

Line Shooter: A hydraulic device 

designed to deploy hook–and–line 

gear at a speed slightly faster 

than the vessel’s speed during 

setting. 

Lining Tube: A device used to deploy hook–and–line gear through 

an underwater–setting device. 

Other (Describe) 

9 No Deterrent Used Due to Weather. [See weather exceptions at 

§ 679.24(e)(4)(i), (e)(4)(ii)(B), 

(e)(4)(iii)(B), (e)(4)(iv)(B), and 

(e)(4)(v).] 

0 No Deterrent Used. 


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TABLE 20 TO PART 679—SEABIRD AVOIDANCE GEAR REQUIREMENTS FOR VESSELS, BASED ON AREA, GEAR, AND VESSEL

TYPE

(See § 679.24(e) for complete seabird avoidance program requirements; see § 679.24(e)(1) for applicable fisheries.) 

If you operate a vessel deploying hook–and–line gear, other than 

snap gear, in waters specified at § 679.24(e)(3), and your vessel 

is... 

then you must use this seabird avoidance gear in conjunction 

with requirements at § 679.24(e)... 

>26 ft to 55 ft LOA and without masts, poles, or rigging minimum of one buoy bag line 

>26 ft to 55 ft LOA and with masts, poles, or rigging minimum of a single streamer line of a standard specified at 

§ 679.24(e)(4)(ii) 

>55 ft LOA minimum of paired streamer lines of a standard specified at 

§ 679.24(e)(4)(iii) 

If you operate a vessel deploying hook–and–line gear and use 

snap gear in waters specified at § 679.24(e)(3), and your vessel 

is... 

then you must use this seabird avoidance gear in conjunction 

with requirements at § 679.24(e)... 

>26 ft to 55 ft LOA and without masts, poles, or rigging minimum of one buoy bag line 

>26 ft to 55 ft LOA and with masts, poles, or rigging minimum of a single streamer line of a standard specified at 

§ 679.24(e)(4)(iv) 

>55 ft LOA minimum of a single streamer line of a standard specified at 

§ 679.24(e)(4)(iv) 

If you operate any of the following hook–and–line vessels... then... 

< 32 ft LOA in the State waters of IPHC Area 4E you are exempt from seabird avoidance measures. 

in NMFS Reporting Area 649 (Prince William Sound) 

in State waters of Cook Inlet 

in NMFS Reporting Area 659 (Eastern GOA Regulatory Area, Southeast Inside District), but not including waters in the areas south of a 

straight line at 56°17.25 N. lat. between Point Harris and Port Armstrong in Chatham Strait, State statistical areas 325431 and 

325401, and west of a straight line at 136°21.17 E. long. from Point 

Wimbledon extending south through the Inian Islands to Point 

Lavinia 

≤ 55 ft LOA in IPHC Area 4E but not including waters south of 

60°00.00 N. lat. and west of 160°00.00 W. long. 

[FR Doc. E9–6894 Filed 3–26–09; 8:45 am] 

BILLING CODE 3510–22–S 


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