`[Federal Register Volume 74, Number 58 (Friday, March 27, 2009)]
[Rules and Regulations]
[Pages 13355-13359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6894]



[[Page 13355]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080612764-9304-02]
RIN 0648-AW94


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish 
Fisheries of the Bering Sea and Aleutian Islands Management Area and 
Gulf of Alaska, Seabird Avoidance Requirements Revisions for 
International Pacific Halibut Commission Regulatory Area 4E

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

ACTION: Final rule.

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

SUMMARY: NMFS issues a final rule that revises the seabird avoidance 
requirements for the hook-and-line groundfish and halibut fisheries in 
International Pacific Halibut Commission Area 4E. The final rule 
eliminates seabird avoidance requirements for hook-and-line vessels 
less than or equal to 55 ft (16.8 m) length overall in portions of Area 
4E in the eastern Bering Sea. This action is necessary to revise 
seabird avoidance measures based on the latest scientific information 
and to reduce unnecessary regulatory burdens and associated costs.

DATES: Effective April 27, 2009.

ADDRESSES: Copies of the map of the seabird avoidance measures in Area 
4E, and the Environmental Assessment/Regulatory Impact Review/Final 
Regulatory Flexibility Analysis (EA/RIR/FRFA) for this action may be 
obtained from NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, 
Attn: Ellen Sebastian or from the Alaska Region NMFS website at http://www.alaska fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone (EEZ) off Alaska are managed under the Fishery Management 
Plan for Groundfish of the Bering Sea and Aleutian Islands Management 
Area and the Fishery Management Plan for Groundfish of the Gulf of 
Alaska (FMPs). The North Pacific Fishery Management Council (Council) 
prepared the FMPs under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, 
et seq. Regulations implementing the FMPs appear at 50 CFR part 679. 
General regulations governing U.S. fisheries also appear at 50 CFR part 
600.
    Management of the Pacific halibut fisheries in and off Alaska is 
governed by an international agreement between Canada and the United 
States. This agreement, entitled the ``Convention Between the United 
States of America and Canada for the Preservation of the Halibut 
Fishery of the Northern Pacific Ocean and Bering Sea'' (Convention), 
was signed at Ottawa, Canada, on March 2, 1953, and was amended by the 
``Protocol Amending the Convention,'' signed at Washington, D.C., March 
29, 1979. The Convention is implemented in the United States by the 
Northern Pacific Halibut Act of 1982 (Halibut Act). The directed 
commercial Pacific halibut fishery in Alaska is managed under an 
individual fishing quota (IFQ) program, as is the fixed gear sablefish 
fishery. The IFQ Program is a limited access management system. This 
program is codified at 50 CFR part 679.

Background

    The purpose of this action is to revise the seabird avoidance 
measures currently implemented for the hook-and-line groundfish and 
halibut fisheries based on the best available information regarding 
seabird occurrence and potential fishing vessel interactions. Seabird 
avoidance measures reduce the incidental mortality of seabirds in the 
hook-and-line fisheries off Alaska. Since 1997, NMFS has implemented 
and revised seabird avoidance measures to mitigate interactions between 
the federal hook-and-line fisheries and seabirds (62 FR 23176, April 
29, 1997; 63 FR 11161, March 6, 1998; 69 FR 1930, January 13, 2004; and 
72 FR 71601, December 18, 2007).
    A detailed description of the information used to support this 
action, map of the area, and the reasons for the specific details of 
the regulatory amendments are in the proposed rule (74 FR 2984, January 
16, 2009). The map is reproduced in this rule (See Figure 1).

Regulatory Amendments

    In June 2008, the Council unanimously recommended revisions to the 
seabird avoidance measures in a portion of Area 4E. These measures 
apply to operators of vessels using hook-and-line gear for Pacific 
halibut in the IFQ and Community Development Quota (CDQ) management 
programs in waters from 0 nm to 200 nm; for IFQ sablefish in waters 
from 0 nm to 200 nm; and for groundfish in the EEZ.
    This final rule reorganizes and revises Sec.  679.24(e)(3) and 
Table 20 to part 679 to clarify existing regulatory text and to 
eliminate unnecessary seabird avoidance gear requirements for all hook-
and-line vessels less than or equal to 55 ft (16.8 m) LOA fishing in 
Area 4E, except in the southern portion of Area 4E as shown in Figure 
1. Hook-and-line vessels fishing in the portion of Area 4E south of 60 
degrees N latitude and west of 160 degrees W longitude continue to be 
required to use seabird avoidance measures.

[[Page 13356]]

[GRAPHIC] [TIFF OMITTED] TR27MR09.414

Figure 1. International Pacific Halibut Commission Regulatory Area 
4E is shown as the striated area.
    Notes: Hook-and-line vessels > 26 ft (7.9 m) LOA fishing in the 
shaded portion of the striated area are required to continue using 
seabird avoidance measures. In the striated area of Area 4E, vessels 
> 26 ft (7.9 m) to 55 ft (16.8 m) are exempt from seabird avoidance 
measures, and vessels > 55 ft (16.8 m) continue to use seabird 
avoidance measures. Vessels <= 26 ft (7.9 m) continue to be exempt 
from seabird avoidance measures throughout all of Area 4E.

    The best available scientific information regarding seabird 
observations in the Area 4E indicates that ESA-listed seabirds and 
other seabird species of concern are not likely to occur in Area 4E, 
except for the southern portion where seabird avoidance measures 
continue to be required. Therefore, the final rule eliminates seabird 
avoidance measures where interactions with seabird species of concern 
are not likely to occur and ensures that such measures are used in 
waters where interactions with seabird species of concern are likely to 
occur. Table 19 to part 679 also is revised to correct cross 
references. Under the descriptions for the seabird avoidance gear and 
other methods, the reference to Sec.  679.24(e)(5) is corrected to read 
Sec.  679.24(e)(4).

Comments and Responses

    NMFS received no comments on the proposed rule (74 FR 2984, January 
16, 2009). No substantive changes were made in the final rule from the 
proposed rule. Minor editorial changes were made to Tables 19 and 20 
and to Sec.  679.24(e)(3)(i).

Classification

    The Administrator, Alaska Region, NMFS, determined that the final 
rule is necessary for the conservation and management of the groundfish 
fisheries and that it is consistent with the Magnuson-Stevens Act, the 
Halibut Act, and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA describes the economic impact of this final rule on small 
entities. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, NMFS' responses to those 
comments, and a summary of the analyses completed to support the 
action. Descriptions of the action, the reasons it is under 
consideration, and its objectives and legal basis are included earlier 
in the preamble and in the SUMMARY section of the preamble. A copy of 
the FRFA is available from NMFS (see ADDRESSES).
    The IRFA was described in the classification section to the 
proposed rule (74 FR 2984, January 16, 2009), and the public was 
notified of how to obtain a copy of the IRFA. The public comment period 
ended on February 17, 2009. No comments were received on the IRFA or on 
the economic impacts of the rule.
    The vessels that fish for groundfish or halibut with hook-and-line 
gear in the waters off Alaska would be directly regulated by this 
action. The seabird avoidance measures presently in place, and the 
alternatives and options considered, apply directly to the operator of 
a vessel deploying hook-and-line gear in the waters off Alaska.

[[Page 13357]]

These regulations apply to the operation of a vessel and not directly 
to the halibut or sablefish IFQ-holder unless the holder is also the 
owner/operator of a vessel. Multiple IFQs may be used on a single 
vessel. Thus, the IRFA analysis of large and small entities is 
conducted at the vessel level and not the IFQ level. This analysis is 
complicated by the fact that the halibut fishery is managed somewhat 
separately from the Federal groundfish fisheries, resulting in multiple 
data sources being synthesized for the analysis. Thus, data from 
multiple sources and years have been used to estimate the numbers of 
large and small entities.
    Approximately 70 vessels ranging between 26 ft (7.9 m) and 55 ft 
(16.8 m) LOA, participated in the CDQ Pacific halibut fishery in Area 
4E. The 70 vessels that fished in the CDQ halibut fishery in Area 4E 
are mostly small vessels, 66 are less than 33 ft (10.1 m) LOA. These 
small vessels fish in the salmon and herring fisheries in the Bristol 
Bay and Togiak Bay areas of Alaska. None of the 70 vessels harvest 
groundfish in other Federal fisheries; thus, comprehensive annual 
revenue data are not available for these vessels in the way that they 
are for vessels that participate in Federal groundfish fisheries. 
However, given the small size of these vessels and the small scale of 
the fisheries they participate in, it is not expected that any of these 
vessels would earn more than $4 million in annual revenue. Thus, these 
70 vessels are believed to be small entities, as defined by Small 
Business Administration criteria.
    Comprehensive annual revenue data, from all sources, are available 
for the 92 vessels that participated in the Federal hook-and-line 
groundfish fisheries in the Bering Sea and Aleutian Islands management 
area in 2006. In 2006, 52 hook and line catcher vessels (CVs) and 6 
hook-and-line catcher processors (CPs) reported that they caught and 
processed less than $4 million in gross ex-vessel or gross first 
wholesale product value. Thus, these 58 vessels are considered small 
entities.
    In total, this analysis has identified 128 vessels that are 
believed to be directly regulated small entities. A review of American 
Fisheries Act (AFA) permit data revealed that none of the 128 vessels 
with gross revenue less than $4 million in 2006 are AFA-permitted 
vessels. Because AFA affiliations are relatively stable across years, 
none of these vessels are large because of AFA affiliations.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The FRFA did not reveal any Federal rules that duplicate, overlap, 
or conflict with the action.
    The Council considered four alternatives and two options for this 
action. Alternative 1 is the status quo, which would require the 
continued use of seabird avoidance measures for all hook-and-line 
vessels fishing for groundfish or halibut in the federal waters of Area 
4E. This alternative would not provide economic relief; and therefore, 
does not meet the objectives of this action.
    Alternative 2 would exempt hook-and-line vessels 26 ft (7.9 m) to 
32 ft (9.8 m) LOA from seabird avoidance measures while fishing for 
groundfish or halibut in Area 4E. This alternative would provide 
economic relief only to vessels in this size class, partially meeting 
the objectives of the action for the hook-and-line fleet.
    Alternative 3 (preferred) exempts hook-and-line vessels 26 ft (7.9 
m) to 55 ft (16.8 m) LOA from seabird avoidance measures while fishing 
for groundfish or halibut in Area 4E. This alternative provides more 
economic relief to the hook-and-line fleet than Alternatives 1 and 2.
    Alternative 4 would exempt all hook-and-line vessels from seabird 
avoidance measures while fishing for groundfish or halibut in Area 4E. 
This alternative would provide the most economic relief to the hook-
and-line fleet compared to the other alternatives, but the economic 
relief in comparison to Alternative 3 is not likely a large difference. 
Very few vessels over 55 ft (16.8 m) LOA participate in the hook-and-
line fishery in Area 4E, and the larger vessels have the capability to 
use seabird avoidance gear based on larger deck space, adequate 
superstructure, and available crew.
    Two options were also considered for this action. Option 1 
(preferred) requires full compliance with the seabird avoidance 
measures inside the shaded portion of Area 4E, as shown in Figure 1 of 
the proposed rule (74 FR 2984, January 16, 2009), while option 2 would 
require only the use of a buoy bag in the shaded area. Option 1 would 
require more costs to deploy seabird avoidance gear that meets the 
streamer standards than option 2, which required a buoy bag with no 
standards and no supporting superstructure for streamer lines. Because 
the buoy bag is not likely as effective as the streamer lines, option 1 
is more protective of short-tailed albatross and other seabirds that 
may occur in the shaded area shown in Figure 1.
    The preferred action is Alternative 3 with option 1, which provides 
more economic relief than Alternatives 1 or 2 with option 1. 
Alternative 3 and option 1 were selected because most of the vessels 
participating in the hook-and-line fishery in Area 4E are less than 55 
ft (16.8 m) LOA. The use of seabird avoidance gear on these vessels can 
be difficult because of limited deck space for the gear or the lack of 
superstructure to support the streamer lines. Smaller vessels also are 
likely to have fewer crew members available to handle the gear. Only 
Alternative 4 has smaller economic impacts on the directly regulated 
small entities than Alternative 3. Because very few large vessels 
participate in the Area 4E fishery, Alternative 4 is not likely to 
provide much more economic relief than Alternative 3. Alternative 4 was 
not chosen because larger vessels are more likely to have adequate deck 
space, superstructure, and crew available to allow for safe and 
effective use of seabird avoidance gear. Because of the presence of 
short-tailed albatross in the shaded area of Figure 1, the Council 
recommended option 1 for vessels fishing in this area to ensure the 
continued protection of short-tailed albatross from potential 
incidental takes by any hook-and-line vessel. Option 1 has a marginally 
greater potential adverse economic impact on directly regulated small 
entities than does option 2, but option 1 more fully achieves the 
objectives of the action and is necessary for the protection of short-
tailed albatross and other seabirds that may occur in the shaded area 
of Figure 1 of the proposed rule, making it more compliant with other 
applicable law (e.g., Endangered Species Act).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, NMFS Alaska Region has developed a website 
that provides easy access to details of this final rule, including 
links to the final rule, sources for seabird avoidance gear, and a 
history of seabird avoidance measures in the Alaska fisheries. The 
relevant information available on the website is the Small Entity 
Compliance

[[Page 13358]]

Guide. The website address is http://www.fakr.noaa.gov/protectedresources/seabirds.htm. Copies of this final rule are 
available upon request from the NMFS, Alaska Regional Office (see 
ADDRESSES).
    An informal consultation with the U. S. Fish and Wildlife Service 
(FWS) under the Endangered Species Act was concluded for this action on 
September 15, 2008. As a result of the informal consultation, NMFS 
determined that fishing activities under this rule are not likely to 
adversely affect endangered or threatened species or their designated 
critical habitat. The FWS concurred with this determination.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: March 23, 2009.
John Oliver
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
1. The authority citation for part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108 447.

0
2. In Sec.  679.24, redesignate paragraphs (e)(3)(i) and (e)(3)(ii) as 
paragraphs (e)(3)(ii) and (e)(3)(iii), respectively; add new paragraph 
(e)(3)(i); and revise paragraph (e)(3) introductory text to read as 
follows:


Sec.  679.24  Gear limitations.

* * * * *
    (e) * * *
    (3) Seabird avoidance gear requirements. (See also Table 20 to this 
part.)
    (i) The operator of a vessel identified in paragraph (e)(1) of this 
section must comply with paragraph (e)(3)(ii) or (e)(3)(iii) of this 
section while fishing with hook-and-line gear for groundfish, IFQ 
halibut, CDQ halibut, or IFQ sablefish in Federal waters (EEZ) and for 
IFQ halibut, CDQ halibut, or IFQ sablefish in the State of Alaska 
waters, excluding fishing in:
    (A) NMFS Reporting Area 649 (Prince William Sound);
    (B) State waters of Cook Inlet;
    (C) NMFS Reporting Area 659 (Eastern GOA Regulatory Area; Southeast 
Inside District), but including waters in the areas south of a straight 
line at 56[deg]17.25 N. lat. between Point Harris and Port Armstrong in 
Chatham Strait, State statistical areas 325431 and 325401, and west of 
a straight line at 136[deg]21.17 E. long. from Point Wimbledon 
extending south through the Inian Islands to Point Lavinia; and
    (D) Area 4E with a vessel less than or equal to 55 ft (16.8 m) LOA, 
but including fishing in waters south of 60[deg]00.00 N. lat. and west 
of 160[deg]00.00 W. long.
* * * * *

0
3. Tables 19 and 20 to part 679 are revised to read as follows:

           Table 19 to Part 679--Seabird Avoidance Gear Codes
------------------------------------------------------------------------
                             VESSEL LOGBOOK
-------------------------------------------------------------------------
                                              SEABIRD AVOIDANCE GEAR OR
                    CODE                               METHOD.
------------------------------------------------------------------------
1                                            Paired Streamer Lines: Used
                                              during deployment of hook-
                                              and-line gear to prevent
                                              birds from taking hooks.
                                              Two streamer lines used,
                                              one on each side of the
                                              main groundline. Each
                                              streamer line consists of
                                              three components: a length
                                              of line, streamers
                                              attached along a portion
                                              of the length and one or
                                              more float devices at the
                                              terminal end. See
                                              performance and material
                                              standards at Sec.
                                              679.24(e)(4)(iii).
------------------------------------------------------------------------
2                                            Single Streamer Line: Used
                                              during deployment of hook-
                                              and-line gear to prevent
                                              birds from taking hooks.
                                              The streamer line consists
                                              of three components: a
                                              length of line, streamers
                                              attached along a portion
                                              of the length and one or
                                              more float devices at the
                                              terminal end. See
                                              performance and material
                                              standards at Sec.
                                              679.24(e)(4)(ii).
------------------------------------------------------------------------
3                                            Single Streamer Line, used
                                              with Snap Gear: Used
                                              during the deployment of
                                              snap gear to prevent birds
                                              from taking hooks. The
                                              streamer line consists of
                                              three components: a length
                                              of line, streamers
                                              attached along a portion
                                              of the length and one or
                                              more float devices at the
                                              terminal end. See
                                              performance and material
                                              standards at Sec.
                                              679.24(e)(4)(iv).
------------------------------------------------------------------------
4                                            Buoy Bag Line: Used during
                                              the deployment of hook-and-
                                              line gear to prevent birds
                                              from taking hooks. A buoy
                                              bag line consists of two
                                              components: a length of
                                              line (without streamers
                                              attached) and one or more
                                              float devices at the
                                              terminal end. See
                                              performance and material
                                              standards at Sec.
                                              679.24(e)(4)(i).
------------------------------------------------------------------------
Other Device used in conjunction with Single Streamer Line or Buoy Bag
 Line
------------------------------------------------------------------------
5                                            Add weights to groundline:
                                              Applying weights to the
                                              groundline for the purpose
                                              of sinking the hook-and-
                                              line gear more quickly and
                                              preventing seabirds from
                                              accessing the baited
                                              hooks.
------------------------------------------------------------------------
6                                            Additional Buoy Bag Line or
                                              Single Streamer Line:
                                              Using a second buoy bag
                                              line or streamer line for
                                              the purpose of enhancing
                                              the effectiveness of these
                                              deterrent devices at
                                              preventing seabirds from
                                              accessing baited hooks.
------------------------------------------------------------------------
7                                            Strategic Offal Discharge:
                                              Discharging fish, fish
                                              parts (i.e., offal) or
                                              spent bait for the purpose
                                              of distracting seabirds
                                              away from the main
                                              groundline while setting
                                              gear.
------------------------------------------------------------------------
Additional Device Used
------------------------------------------------------------------------
8                                            Night Fishing: Setting hook-
                                              and-line gear during dark
                                              (night time hours).
                                            ----------------------------
                                             Line Shooter: A hydraulic
                                              device designed to deploy
                                              hook-and-line gear at a
                                              speed slightly faster than
                                              the vessel's speed during
                                              setting.
                                            ----------------------------
                                             Lining Tube: A device used
                                              to deploy hook-and-line
                                              gear through an underwater-
                                              setting device.
                                            ----------------------------
                                             Other (Describe)
------------------------------------------------------------------------
9                                            No Deterrent Used Due to
                                              Weather. [See weather
                                              exceptions at Sec.
                                              679.24(e)(4)(i),
                                              (e)(4)(ii)(B),
                                              (e)(4)(iii)(B),
                                              (e)(4)(iv)(B), and
                                              (e)(4)(v).]
------------------------------------------------------------------------
0                                            No Deterrent Used.
------------------------------------------------------------------------


[[Page 13359]]


 Table 20 to Part 679--Seabird Avoidance Gear Requirements for Vessels,
                  based on Area, Gear, and Vessel Type
      (See Sec.   679.24(e) for complete seabird avoidance program
    requirements; see Sec.   679.24(e)(1) for applicable fisheries.)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
If you operate a vessel deploying hook-  then you must use this seabird
 and-line gear, other than snap gear,     avoidance gear in conjunction
 in waters specified at Sec.              with requirements at Sec.
 679.24(e)(3), and your vessel is...      679.24(e)...
------------------------------------------------------------------------
>26 ft to 55 ft LOA and without masts,   minimum of one buoy bag line
 poles, or rigging
------------------------------------------------------------------------
>26 ft to 55 ft LOA and with masts,      minimum of a single streamer
 poles, or rigging                        line of a standard specified
                                          at Sec.   679.24(e)(4)(ii)
------------------------------------------------------------------------
>55 ft LOA                               minimum of paired streamer
                                          lines of a standard specified
                                          at Sec.   679.24(e)(4)(iii)
------------------------------------------------------------------------
If you operate a vessel deploying hook-  then you must use this seabird
 and-line gear and use snap gear in       avoidance gear in conjunction
 waters specified at Sec.                 with requirements at Sec.
 679.24(e)(3), and your vessel is...      679.24(e)...
------------------------------------------------------------------------
>26 ft to 55 ft LOA and without masts,   minimum of one buoy bag line
 poles, or rigging
------------------------------------------------------------------------
>26 ft to 55 ft LOA and with masts,      minimum of a single streamer
 poles, or rigging                        line of a standard specified
                                          at Sec.   679.24(e)(4)(iv)
------------------------------------------------------------------------
>55 ft LOA                               minimum of a single streamer
                                          line of a standard specified
                                          at Sec.   679.24(e)(4)(iv)
------------------------------------------------------------------------
If you operate any of the following      then...
 hook-and-line vessels...
------------------------------------------------------------------------
< 32 ft LOA in the State waters of IPHC  you are exempt from seabird
 Area 4E                                  avoidance measures.
----------------------------------------
in NMFS Reporting Area 649 (Prince       ...............................
 William Sound)
----------------------------------------
in State waters of Cook Inlet            ...............................
----------------------------------------
in NMFS Reporting Area 659 (Eastern GOA  ...............................
 Regulatory Area, Southeast Inside
 District), but not including waters in
 the areas south of a straight line at
 56[deg]17.25 N. lat. between Point
 Harris and Port Armstrong in Chatham
 Strait, State statistical areas 325431
 and 325401, and west of a straight
 line at 136[deg]21.17 E. long. from
 Point Wimbledon extending south
 through the Inian Islands to Point
 Lavinia
----------------------------------------
<= 55 ft LOA in IPHC Area 4E but not     ...............................
 including waters south of 60[deg]00.00
 N. lat. and west of 160[deg]00.00 W.
 long.
------------------------------------------------------------------------

[FR Doc. E9-6894 Filed 3-26-09; 8:45 am]
BILLING CODE 3510-22-S`