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:

Proposed rule; request for comments.

SUMMARY:

NMFS issues a proposed rule that would revise the seabird avoidance requirements for the hook-and-line groundfish and halibut fisheries in International Pacific Halibut Commission Area 4E. The proposed rule would eliminate 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:

Written comments must be received by February 17, 2009.

ADDRESSES:

Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by 0648-AW94, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov .
• Mail: P. O. Box 21668, Juneau, AK 99802.
• Fax: (907) 586-7557.
• Hand delivery to the Federal Building: 709 West 9^th Street, Room 420A, Juneau, AK.

All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

Copies of the map of the seabird avoidance measures in Area 4E, and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action may be obtained from the Alaska Region NMFS address above or from the Alaska Region NMFS website at http://www.alaskafisheries.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 proposed 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).

NMFS compiled seabird sightings data from the following sources: from 1988-2004 records from seabird observers on the U.S. Fish and Wildlife Service's (FWS) research vessel M/V TIGLAX; from incidental sightings by biologists, fishermen, seamen, fisheries observers, and birdwatchers provided to the FWS; from the International Pacific Halibut Commission (IPHC); from the Alaska Natural Heritage Program; from historical sightings documented in published literature; from satellite tagging data; and from the North Pacific Pelagic Seabird Database. The EA/RIR/IRFA for this action describes this information (see ADDRESSES). This information showed that seabird species of concern are not likely to occur in portions of Area 4E where fishing vessels using hook-and-line gear may operate; and therefore, it is not likely that interactions between the fishing vessels and these seabird species of concern would occur in those portions of Area 4E. Thus, the Council recommended revisions to the seabird avoidance measures in a portion of Area 4E. These revisions would eliminate seabird avoidance measures in the portion of Area 4E where seabird species of concern are not likely to occur. The revisions would apply to vessels greater than 26 ft (7.9 m) to less than or equal to 55 ft (16.8 m) length overall (LOA) fishing in the EEZ. Vessels less than or equal to 26 ft (7.9 m) LOA are not required to use seabird avoidance measures. Vessels greater than 55 ft (16.8 m) LOA would continue to be required to use seabird avoidance measures in all of Area 4E. Vessels this size and larger are more likely to interact with other seabirds because of the greater amount of offal discharge and greater number of hooks fished compared to smaller vessels. Vessels greater than 55 ft (16.8 m) LOA are capable of efficiently deploying seabird avoidance gear, as further discussed in the Classification section.

Species of concern of pelagic seabirds (particularly the Endangered Species Act (ESA)-listed short-tailed albatross) are rarely observed in most of Area 4E; and therefore, are not likely to interact with hook-and-line fisheries in most of this area (Figure 1). Pelagic seabird species of concern that may interact with hook-and-line vessels have been observed and documented in the southern portion of Area 4E west of Bristol Bay. The seabird avoidance measures would continue to be required in this area for all hook-and-line vessels greater than 26 feet (7.9 m) LOA.

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Eliminating unnecessary seabird avoidance measures is intended to remove associated economic burdens on affected vessels. These revisions are the result of adaptive management using the best available information to focus regulatory requirements where they are needed. Research results and the environmental and economic considerations of the proposed action are summarized in the EA/RIR/IRFA for this action (see ADDRESSES).

Proposed Regulatory Amendments

In June 2008, the Council unanimously recommended revisions to the seabird avoidance measures in a portion of Area 4E. These measures would apply to operators of vessels fishing 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 with hook-and-line gear in the EEZ.

The proposed rule to implement the Council's recommendations would reorganize and revise § 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 would continue to be required to use seabird avoidance measures. 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 would continue to be required. Therefore, the proposed rule would eliminate seabird avoidance measures where interactions with seabird species of concern is not likely to occur and ensure that such measures are used in waters where interactions with seabird species of concern are likely to occur.

Table 19 to part 679 also would be revised to correct cross references. Under the descriptions for the seabird avoidance gear and other methods, the reference to § 679.24(e)(5) would be corrected to read § 679.24(e)(4).

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, the Halibut Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

An IRFA was prepared as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

The vessels that fish for groundfish or halibut with hook-and-line gear in the waters off Alaska would be directly regulated by the proposed 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. 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.

The IRFA indicates that this proposed action is not likely to impose significant costs on directly regulated small entities. The action reduces the regulatory burden on hook-and-line vessels 55 ft (16.8 m) LOA or less by eliminating all seabird avoidance requirements for these vessels operating in portions of Area 4E. The reduced regulatory burden under the proposed action would tend to reduce the costs for the directly regulated vessels. Vessel operational cost of production data are not presently collected, making it impossible to quantify the net effect on operational costs that might occur under each alternative and option.

Since the initial adoption of seabird avoidance regulations, research has been conducted to more precisely identify the geographical distribution and range of seabirds of concern, and on the efficacy of required seabird avoidance devices. Recent research has shown the likely locations of interaction between seabirds of concern and fishing vessels in Area 4E and has provided the information necessary to identify waters where seabird avoidance measures may not be necessary. The proposed action, which is intended to reduce the economic burden placed on small entities operating in these fisheries, is a direct result of this research.

An IRFA must describe any significant alternatives to the proposed rule that accomplish the stated objectives of the proposed action, consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule on small entities. Including status quo, this proposed action has four alternatives and two options.

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 to only vessels in this size class, partially meeting the objectives of the action for the hook-and-line fleet.

Alternative 3 (preferred) would exempt 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 would provide 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) would require full compliance with the seabird avoidance measures inside the shaded portion of Area 4E, as shown in Figure 1, 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 proposed action and is necessary for the protection of short-tailed albatross and other seabirds that may occur in the shaded area of Figure 1, making it more compliant with other applicable law (e.g., ESA).

No Federal rules duplicate, overlap, or conflict with the proposed action.

An informal consultation with the FWS under the Endangered Species Act was concluded for this proposed 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

For reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for part 679 is revised 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:

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