[Federal Register: March 11, 2003 (Volume 68, Number 47)]
[Proposed Rules]
[Page 11501-11518]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11mr03-14]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric dministration
50 CFR Part 600
[Docket No. 030224043-3043-01; I.D. 040202C]
Magnuson-Stevens Act Provisions, Subpart H; General Provisions
for Domestic Fishing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 11502]]
ACTION: Notice of decision on petition for rulemaking on bycatch.
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SUMMARY: NOAA announces its decision on a petition for rulemaking under
the Administrative Procedure Act. Oceana, a non-governmental
organization, petitioned the U.S. Department of Commerce to promulgate
immediately a rule to establish a program to count, cap, and control
bycatch in U.S. fisheries. The Oceana petition asserted that NMFS is
not complying with its statutory obligations to monitor and minimize
bycatch under the Magnuson-Stevens Fishery Conservation and Management
Act (MSA), the Endangered Species Act (ESA), the Marine Mammal
Protection Act of 1972 (MMPA), and the Migratory Bird Treaty Act
(MBTA). The petition sought a regulatory program that includes a
workplan for observer coverage sufficient to provide statistically
reliable bycatch estimates in all fisheries, the incorporation of
bycatch estimates into restrictions on fishing, the placing of limits
on directed catch and bycatch in each fishery with provision for
closure upon attainment of either limit, and bycatch assessment and
reduction plans as a requirement for all commercial and recreational
fisheries. NMFS has decided not to initiate rulemaking immediately, but
instead to update and renew its commitment to a National Bycatch
Strategy, which may eventually result in rulemaking for some fisheries.
ADDRESSES: Copies of the petition are available from John H. Dunnigan,
Director, Office of Sustainable Fisheries, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910; telephone 301-713-2334. The text of
Oceana's petition is available via internet at the following NMFS web
address: http://www.nmfs.noaa.gov/bycatch.htm.
address: http://www.nmfs.noaa.gov/bycatch.htm.
FOR FURTHER INFORMATION CONTACT: John H. Dunnigan, telephone (301)713-
2334.
SUPPLEMENTARY INFORMATION: NMFS published a notice of receipt of
petition for rulemaking in the April 18, 2002, Federal Register (67 FR
19154) and invited public comments for 30 days ending June 17, 2002. In
response, NMFS received 31 letters from different interest groups
including Regional Fishery Management Councils (RFMCs), the
Commonwealth of the Northern Mariana Islands, various commercial
fishermen and fisheries organizations, environmental groups, and other
interested individuals. Also, NMFS received tens of thousands of
letters of similar content and petitions from interested members of the
general public. Summaries of and responses to comments are provided
under Public Comments below.
The Petition
The petition sought rulemaking on ``bycatch,'' which it refers to
as ``the incidental catch of birds, mammals, turtles, and fish.'' The
petition cited specific legal responsibilities of NMFS for bycatch
under the MSA, ESA, MMPA and MBTA, and concluded that NMFS must count,
cap, and control bycatch. The petition stated that NMFS must monitor
and report bycatch of seabirds that occurs in fishing operations and
take steps to reduce seabird bycatch.
For the MSA and related regulations and Federal Court
interpretations, the petition cited national standard 9 and other
requirements for minimizing bycatch and related mortality, including
the requirement to establish a standardized reporting methodology to
assess the amount and type of bycatch occurring in a fishery. The
petition concluded that any Federal Fishery Management Plan (FMP) or
regulation prepared to implement an FMP must contain measures to
minimize bycatch in fisheries to the extent practicable and argued that
greater observer coverage is required.
For the ESA, the petition cited the prohibition on taking
endangered species and protection of threatened species, including
recovery plans to guide regulatory efforts, as well as consultation
requirements and incidental take statements.
For the MMPA, the petition cited requirements for a regulatory
system to avoid and minimize takes of marine mammals reducing mortality
or serious injury to insignificant levels, as well as take reduction
plans and monitoring of marine mammal takes.
For the MBTA, the petition cited the prohibition on taking any
migratory bird, including seabirds, except as permitted by regulations
issued by the Department of the Interior, and cited Federal case law
and Executive Order 13186 as requirements that NMFS ensure that fishery
management plans (FMPs) comply with the MBTA. The petition also
referred to the NMFS-issued National Plan of Action for reducing
seabird bycatch and the need to prepare a national seabird bycatch
assessment.
The exact and complete assertions of nonconformance with Federal
law are contained in the text of Oceana's petition which is available
via internet at the following NMFS web address: http://
www.nmfs.noaa.gov/bycatch.htm.
Also, a copy of the petition may be
www.nmfs.noaa.gov/bycatch.htm. Also, a copy of the petition may be
obtained by contacting NMFS at the above address.
The petition specifically requested that NMFS immediately undertake
a rulemaking to meet its obligations under the above statutory
authorities and that such rulemaking include the following four
actions:
``1. Develop and implement a workplan for placing observers on
enough fishing trips to provide statistically reliable bycatch
estimates in all fisheries. This task involves several steps (taking
into account the diversity of vessel category, gears used, and fishing
region): (a) determining how many fishing trips must be observed, where
observers should be stationed, and other details; (b) identifying
funding sources to support such observer coverage, including taxpayer
subsidies, taxing landings or user fees; and (c) hiring, training, and
deploying the necessary observers.
``2. Incorporate reasonable estimates of bycatch into all total
allowable catch levels and other restrictions on fishing.
``3. Set absolute limits on the amount of directed catch and
bycatch (including non-fish bycatch) that can occur in each fishery,
and close the fishery when the applicable catch or bycatch limit
(whichever is reached first) is met.
``4. Within 12 months of initiating rulemaking, develop, approve,
and implement bycatch assessment and reduction plans for commercial and
recreational fisheries. Such plans should include, at minimum, (a) an
assessment of the fishery according to its bycatch, including its
types, levels, and rates of bycatch on a per-gear basis and the impact
of that bycatch on bycaught species and the surrounding environment;
(b) a description of the level and type of observer coverage necessary
accurately to characterize total mortality (including bycatch) in the
fishery; (c) bycatch reduction targets and the amount of directed and
bycatch mortality allowed in each fishery to meet the target; and (d)
types of bycatch reduction measures (such as closed areas, gear
modifications, or effort reduction) that will be employed in the
fishery, including incentives for those who use gears that produce less
bycatch. Beginning 12 months after rulemaking commences, NMFS should
not permit fishing in any fishery that lacks a functioning bycatch
plan.''
Public Comments on the Need for Such a Regulation, Its Objectives, and
Alternative Approaches
Thousands of letters of similar content and petitions from
interested members of the general public expressed concern about ``the
senseless
[[Page 11503]]
destruction of ocean life caused by wasteful fishing'' and the failure
of government to enforce four Federal laws (MSA, ESA, MMPA, MBTA) to
reduce bycatch. Most urged the enforcement of law and the placement of
observers on fishing vessels to monitor bycatch. These letters and
petitions also urged near-zero levels of bycatch for all marine life.
We acknowledge these comments and have given them due consideration in
formulating this notice of decision.
Of the remaining 31 letters: 21 commenters urged that the petition
should be rejected or denied; 2 commenters provided mixed comments on
the petition; and 8 commenters supported the petition to count, cap,
and control bycatch. Most of these commenters noted that there is an
existing MSA process that should be used for rulemaking, that this
process includes RFMCs, and that a global, national rulemaking is
inappropriate. Some noted that the petition failed to acknowledge what
NMFS and RFMCs have done and are doing to minimize bycatch. Many
commenters specifically addressed the points of incorporating bycatch
estimates into total allowable catches (TACs) and establishing quotas
or absolute limits on catch and bycatch.
Other key points made by commenters included: observer programs are
not needed for all fisheries; there should be selection criteria; and
high priority fisheries should get observers. Several commenters noted
that NMFS and RFMCs need a bycatch planning process. Others referred to
seabird bycatch and seabird avoidance measures. Two commenters
supported the call for a coordinated effort at a national level to
standardize protocols for observers. Another commenter emphasized that
bycatch is an international issue and urged NMFS to set an example on
bycatch conservation goals. Commenters also expressed the need to make
funding available for observer programs and bycatch programs.
Responses to the specific points of the 31 letters are provided
below, organized under the four headings corresponding to the four main
components of the bycatch petition.
1. Workplan for Sufficient Observer Coverage
Comment 1: Several commenters stated that bycatch is either
nonexistent or extremely uncommon in certain fisheries such as in the
Commonwealth of the Northern Marianas Islands or in the spiny lobster
fishery of the Gulf of Mexico (i.e., 7 dead fish in 21,000 trap
observations). These commenters expressed that while some level of
coverage may be valuable in certain fisheries such as the Gulf of
Mexico shrimp fishery, any requirements for an observer program for
those fisheries in which bycatch has been determined not to be a
problem is onerous and costly with no added benefit.
Response: NMFS recognizes that certain fishing gears and
configurations are more selective than others. Nonetheless, fisheries
must be assessed at some level, using observers or other bycatch
assessment methods, to determine whether there is a bycatch problem.
NMFS uses logbook information, existing information on gear
selectivity, distribution and abundance of fish and protected resource
populations, and bycatch information in other similar fisheries to make
preliminary evaluations of potential bycatch in unobserved fisheries.
These preliminary evaluations are used by NMFS, and the RFMCs where
appropriate, to determine whether observer placement in these fisheries
is warranted, and at what levels. NMFS will be developing a national
approach to a standardized bycatch reporting methodology as noted under
the NMFS National Bycatch Strategy section below. A national in-house
working group will evaluate the current methodologies for estimating
bycatch, review the current use of self-reporting to estimate discards,
evaluate the potential for estimating discards by inferences drawn from
fishery independent surveys, recommend a statistical design for
observer programs to cover all U.S. fisheries, recommend standards of
precision to be achieved for discard estimates, and recommend observer
sample sizes and associated costs for all U.S. fisheries.
Comment 2: Another commenter objected to the petition's request for
requiring observers on all U.S. fleets regardless of whether there is
bycatch and for requiring a statistically reliable estimate of bycatch
within a 1-year time period, which would necessitate, in some cases,
well in excess of 20 percent observer coverage. The commenter explained
that this would be costly, unnecessary, inefficient, and devastating to
fishermen.
Response: The bycatch petition does not request observers on all
fleets, but instead, calls for a workplan for placing observers on
enough fishing trips to provide statistically reliable bycatch
estimates in all fisheries. NMFS, in collaboration with RFMCs,
evaluates and addresses the problems of bycatch on a fishery-by-fishery
basis. In some cases, this involves deploying observers in certain
fisheries. In other cases, because observer coverage is not possible,
new methods must be devised to assess bycatch. This is an ongoing
process, as part of the fishery management process, and we recognize
that a 1-year time frame for collecting statistically reliable bycatch
estimates by deploying observers in all fisheries is unrealistic, and,
for some fisheries, unwarranted. The development by NMFS of a national
approach to a standardized bycatch reporting methodology will help in
determining what is needed in individual fisheries.
Comment 3: One commenter indicated that the Atlantic Coast
Cooperative Statistics Program's (ACCSP) ``Release, Discard, and
Protected Species Interactions Monitoring Program Module'' is in use on
the Atlantic Coast and that it represents an adequate process for
bycatch monitoring and collection standards.
Response: NMFS agrees that the goals and protocols of the ACCSP
bycatch monitoring program, establishing the preferred methodology to
collect data and estimate bycatch, are well defined and scientifically
reliable. Once funded and implemented in all Atlantic fisheries, this
should provide extremely valuable data and will be an effective tool
for estimating bycatch.
Comment 4: While concurring that observers are an effective method
for gathering detailed information on fishing activities, one commenter
asserted that such programs may present logistical difficulties (small
vessels, rare events) and may not be the best way to assess bycatch in
``all'' fisheries. The commenter urged NMFS not to rush to implement a
comprehensive observer program for every fishery, but rather to
consider a more strategic approach. The commenter also stated that
observer programs should be prioritized by existing information
demonstrating the need for observer coverage.
Response: NMFS agrees that observers are effective in many
fisheries but are not appropriate in all fisheries. NMFS, in
collaboration with RFMCs, evaluates and addresses the problems of
bycatch and the need for observers on a fishery-by-fishery basis. The
development of a national approach to standardized bycatch reporting
methodology is discussed below in the NMFS National Bycatch Strategy
section. In fisheries that NMFS determines are not appropriate for
observer coverage, NMFS works with the RFMCs to implement alternative
methods to assess bycatch in fisheries. Also, NMFS recently has
developed long-term budget initiatives for observer programs,
[[Page 11504]]
including research into observer programs for small vessel coverage.
This includes the testing of digital cameras strategically placed
onboard vessels to monitor fishing activities and catch.
Comment 5: One commenter indicated that the North Pacific Fishery
Management Council (NPFMC) and NMFS already have an observer program in
place, stating that, while the program can be improved, such
improvements must come from incremental changes as more information
becomes available.
Response: NMFS agrees that the observer program in place for
monitoring North Pacific groundfish fisheries has benefitted from
changes implemented as new information and resources have become
available. However, observer programs have not been implemented for all
U.S. fisheries. The National Observer Program, a relatively new program
within NMFS headquarters, is charged with facilitating the exchange of
information and experiences between programs to facilitate the
implementation of new programs and to improve the efficiency and
effectiveness of existing observer programs.
Comment 6: Several commenters indicated that the NPFMC already has
a functioning observer program for the North Pacific groundfish fishery
that is large scale, mandatory, and industry-funded. At least one of
these commenters indicated that as a result, the NPFMC has an observer-
generated data base from which to evaluate catch and bycatch mortality
levels in those sectors of the fleet that account for virtually all of
the groundfish landings in the Bering Sea and Aleutian Islands and a
large part of the landings in the Gulf of Alaska.
Response: NMFS agrees that industry funding of the North Pacific
Groundfish Observer Program (NPGOP) has resulted in comprehensive
coverage of North Pacific groundfish fisheries. The data collected by
observers are critical to the management of these fisheries. NMFS is
working with the NPFMC to review current funding mechanisms and
coverage levels in the NPGOP. This review is focused on ensuring that
funding mechanisms and coverage levels continue to address the need for
collection of high quality catch and bycatch data to support management
decisions.
Comment 7: Several commenters supported the development and
implementation of an observer workplan, with consistent and adequate
coverage as necessary to provide more reliable bycatch estimates and
facilitate sound management. Commenters noted that unreliable bycatch
estimates can undermine stock assessments and impede rebuilding
efforts, and that restrictive management regimes based on flawed data
may economically destroy fisheries.
Response: For fisheries where observer coverage is needed to
monitor bycatch, NMFS agrees that a level of coverage should be
deployed that provides statistically reliable bycatch estimates.
Because the need for coverage will vary from fishery to fishery, NMFS
is undertaking a national review of coverage levels in the coming year
to evaluate current mechanisms used for estimating appropriate coverage
levels, and to determine the most appropriate statistical methodologies
upon which to base sample size determinations. This review will be used
in the refinement of future initiatives to address funding for observer
programs. This review will also support the development of a national
plan for NMFS observer programs, where needs for observer coverage to
monitor bycatch will be outlined on a fishery by fishery basis.
Comment 8: One commenter supported a national work plan for
observer placement that would include: hiring standards; coordination
with states; maximum data collection regardless of the statutory
authority; adequate support for observers; well-defined objectives and
goals for each observer program; data quality and assurances; strong
scientific sampling design; annual evaluations; and giving NMFS sole
authority to make all decisions in regards to observers (i.e., RFMCs
should not be involved in sampling design).
Response: NMFS agrees that a national plan for NMFS observer
programs is important to address the commenter's concerns, and has
initiated development of this plan. Historically, NMFS observer
programs have operated independently in each region with little
opportunity for exchange of information and with minimal guidance on
the development of standardized operating procedures. With the
establishment of the National Observer Program in 1999, NMFS has begun
to address many issues critical to the effective deployment of
observers nationwide, such as program goals and objectives, safety
standards for observed vessels, hiring standards and wages for
observers, vessel liability, observer compensation in the event of an
injury, authorities to collect observer data, and options for industry
funding of observer programs. As part of the agency's implementation of
the Fisheries Information System, the National Observer Program has
also begun to address issues to improve overall data integrity, such as
coordination with states and RFMCs, sampling design and data quality,
observer coverage levels, integration of observer data with other
fisheries data, data confidentiality, electronic data entry, and
improved access to observer data. The National Observer Program will be
drafting the national plan for NMFS observer programs in the coming
year, in cooperation with each regional NMFS observer program, RFMCs,
the states, and the state fishery commissions.
Comment 9: Another commenter supported a workplan, but expressed
that observers may not necessarily be required in all fisheries if
other reliable and accurate methods of assessing bycatch are available.
The commenter suggested that NMFS prioritize which fisheries require
observers to obtain accurate bycatch data and determine the level of
coverage needed.
Response: NMFS agrees and is working towards this. Current efforts
include research into alternative methods for collection of bycatch
data, such as the use of video cameras and other means of electronic
monitoring, and identification of fisheries with the highest priority
for observer coverage. As discussed below, NMFS will be developing a
national approach to standardized bycatch reporting methodology.
Comment 10: Commenters asserted that without the immediate
implementation of a plan to count, cap, and control bycatch, including
the implementation of an observer workplan, our oceans remain at risk
from wasteful fishing practices.
Response: NMFS continues to work nationally and internationally to
reduce bycatch. A wide variety of measures are already in place to
monitor and reduce bycatch in numerous fisheries. Bycatch data from
observers are used to develop and implement gear improvements and
management measures to reduce bycatch. NMFS will continue to work on
identifying fisheries for which bycatch is occurring, and furthering
strategies for better estimating and reducing bycatch.
Comment 11: One commenter supported the development of a workplan
for observer placement and suggested that NMFS should: devise a more
effective system for observer deployment than the ``lottery'' system
currently in place in the West Coast groundfish fishery; establish
minimum standards at the national level for safety, hiring, sampling,
and data integrity; require critical evaluation of observer sampling
methods and heighten concern for data integrity; and improve
[[Page 11505]]
constructive communication between observers, NMFS, and Pacific States
Marine Fisheries Commission employees.
Response: Same response as to Comment 8.
Comment 12: One commenter asserted that the universal
implementation of observer programs is not practical for fishing
vessels in the Western Pacific, as the majority of the fleet are small,
1-3 person vessels. The commenter also indicated that the deployment of
observers on Hawaii longline vessels has permitted an evaluation of the
accuracy of logbook records, and has led to a method whereby catch
estimates can be generated from logbook data in the absence of
observers. The commenter indicated that observer-validated logbooks and
survey interceptions at landing sites should not be dismissed as
alternate ways of monitoring bycatch.
Response: Non-biased observer data collection in the majority of
instances is the most effective way to monitor bycatch, particularly of
protected species, in order to obtain accurate data. Nonetheless, NMFS
acknowledges that observer data are not the only way to monitor
bycatch. More cost effective alternatives need to be developed and
considered and may prove to be just as effective, depending upon the
purpose. Electronic monitoring, self-reporting (logbooks), and/or
dockside sampling may be viable alternatives to observers in some
fisheries. For example, in small vessel fisheries electronic monitoring
may be a viable alternative to observers; in other fisheries,
technology may be used to augment observer data. A national approach to
standardized bycatch reporting methodology will be useful in evaluating
needs of individual fisheries.
Comment 13: One commenter recommended that NMFS should identify
statistically significant levels of observer coverage necessary to
obtain reliable estimates of the problem, and require each RFMC to
develop, within a year, a draft plan that would include a standardized
bycatch reporting methodology.
Response: NMFS continues to work with RFMCs and others to identify
appropriate levels of observer coverage in fisheries where bycatch is a
significant problem, and to implement bycatch reporting methodologies.
Developing a more rigorous and ``standardized'' reporting methodology
for all fisheries will require substantially higher levels of funding
for the RFMCs and NMFS (particularly for observers and data analysis)
and greater cooperation by industry where voluntary measures have
failed. Detailed administrative records are needed to comprehensively
assess bycatch reporting methodology and any adverse impacts from
fishing practices. NMFS will evaluate current methodologies for
reporting bycatch and costs, among other things, as it develops a
national approach to a standardized bycatch reporting methodology as
part of its continuing efforts to reduce bycatch.
Comment 14: One commenter indicated that the at-sea Pacific whiting
fleet in the North Pacific and the whiting fishery on the west coast
have had bycatch avoidance plans in effect that are among the most
sophisticated and effective of any in the world. Further, the commenter
pointed out that observers in this fishery are not required by
regulation; the fleet voluntarily carries these observers at their own
expense.
Response: NMFS recognizes the effectiveness of the voluntary at-sea
Pacific whiting fleet observer program, and the contributions of the
industry to the success of this program and to the low levels of
bycatch associated with this fishery.
Comment 15: One commenter indicated that while the development of
an observer workplan is desirable, it is unreasonable to request that
such a plan be implemented without a known source of funding. The
commenter asserted that the petitioners would be more productive if
they influenced Congress to fund the existing mandates of the MSA, at
which time NMFS and the RFMCs and the states could collaborate on
development and implementation of such a workplan.
Response: NMFS has and will continue to develop budget initiatives
to address needs for observer coverage in currently unobserved or
under-observed fisheries. Funding for observer programs has been a
priority for both the agency and Congress, as reflected in increased
funding levels for observer programs from approximately $8 million in
1999 to approximately $21 million in 2002. In addition, NMFS is
exploring alternative mechanisms for funding of observer programs, and
the statutory authority to implement these alternative funding
mechanisms. Authority for industry funding of observers under the MSA
(section 313) currently exists only for fisheries managed by the NPFMC.
Comment 16: Another commenter asserted that the fisheries in the
North Pacific are subject to the most comprehensive observer coverage
of any fishery in existence. The commenter stated further that, based
on scientific advice the NPFMC has received, the accounting measures in
place in the North Pacific fisheries more than adequately account for
and monitor catch and bycatch in the groundfish and crab fisheries.
Response: NMFS agrees that the North Pacific Groundfish Observer
Program has one of the most comprehensive levels of observer coverage,
and the data collected by observers are critical to monitoring of catch
and bycatch. NMFS implemented a similar level of coverage for purse
seine vessels in the Eastern Tropical Pacific to monitor the
effectiveness of measures to mitigate takes of marine mammals.
Comment 17: One commenter expressed opposition to short-term
observer requirements that exceed a scale that NMFS could reasonably be
able to implement. The commenter indicated that effective observer
programs are difficult to design when a fleet is comprised of many
different types of vessels with many different fishing strategies,
including many small vessels that operate with only one or two crew
members and when staffing is problematic. Further, the commenter stated
that increased information from observer programs is only useful to the
extent that NMFS has a system in place to integrate that information
into fisheries management decisions in an efficient and timely way.
Also, the commenter suggested that imposing user fees to defray
observer costs fails to acknowledge the slim profit margins on which
certain sectors of the U.S. fishing fleet already operate. The
commenter believed that these issues explain why observer programs are
discretionary rather than mandatory elements of FMPs.
Response: NMFS understands the difficulties involved in designing
and implementing effective observer programs, particularly when
resources are limited and/or vessels vary considerable in size and
ability to accommodate an observer. The NMFS National Observer Program
has been working in cooperation with each regional observer program to
develop standards for monitoring small vessels, including research into
alternative monitoring technologies. For North Pacific fisheries, NMFS
has fully integrated observer data into monitoring of TACs and bycatch
mortality while the fishery is being conducted. NMFS is implementing
methods to ensure greater and more timely access to and use of observer
data by NMFS scientists and managers through the implementation of the
Fisheries Information System. NMFS is also exploring alternative
mechanisms for funding of observer programs, and the statutory
authority to
[[Page 11506]]
implement these alternative funding mechanisms, as mentioned in
previous responses.
Comment 18: One commenter stated that it is essential to assess
bycatch for all protected species recovery plans and FMPs, and assess
the impact of bycatch on marine food webs.
Response: NMFS agrees that the assessment of bycatch and its effect
on the ecosystem should be an important element in FMPs and protected
species recovery plans. Indeed, the ESA is founded upon the concept
that listed species and their critical habitat must be conserved to
recover endangered and threatened species. For this reason, ESA
recovery plans contain detailed site-specific management actions
necessary to address ongoing threats, such as bycatch in fisheries.
2. Incorporation of Bycatch Estimates into All Total Allowable Catch
(TAC) Levels and Other Fishing Restrictions
Comment 1: One commenter indicated that adjustments to TACs based
on bycatch information are already being made by NMFS analysts who do
stock assessments on stocks for which the Gulf of Mexico RFMC and NMFS
set TAC. The commenter stated that the levels of fish discarded alive
are adjusted by the current estimates of post-release mortality, which
are 10 percent to 20 percent for recreational fish that are discarded
and 33 percent for commercially discarded fish. These portions of the
discarded fish are considered as additional mortality (part of the TAC)
in the assessments.
Response: NMFS works with RFMCs to factor bycatch into the setting
of fishery TACs or harvest guidelines.
Comment 2: One commenter concurred that ``reasonable'' estimates of
bycatch should be used when setting TACs and indicated that the Pacific
RFMC/NMFS harvest mortality monitoring and control system distinguishes
between bycatch and bycatch mortality and expressed the view that these
estimates have been reasonable.
Response: NMFS agrees that reasonable estimates of bycatch
mortality should be used when setting TACs.
Comment 3: Several commenters indicated that the NPFMC counts
bycatch of groundfish and crab species (whether retained or not)
against the applicable TACs for these species and stated that such
bycatch is generally not considered a biological problem.
Response: NMFS believes it is appropriate to apply both retained
and discarded bycatch in this fishery against TAC levels. NMFS MSA
regulations at 50 CFR 600.310(f)(4)(iii) specify that ``All fishing
mortality must be counted against OY [optimum yield], including that
resulting from bycatch, scientific research, and any other fishing
activities.''
Comment 4: One commenter indicated that the Mid-Atlantic RFMC
incorporates bycatch estimates into all TAC levels for all species it
manages and supports requiring bycatch estimates to be incorporated
into TACs.
Response: NMFS agrees with the incorporation of estimates of
bycatch into TACs.
Comment 5: One commenter suggested incorporating all sources of
mortality, including bycatch, into stock assessments and when
establishing TACs.
Response: NMFS incorporates bycatch data, when available, into
stock assessments and into setting TACs as stipulated in various FMPs
or FMP regulations, and NMFS operational guidelines.
Comment 6: One commenter opposed a mandatory requirement to
incorporate estimates of bycatch into all TACs and other restrictions
on fishing stating that sufficient data do not exist to do this for
most fisheries. The commenter expressed opposition to such a
requirement until such time as the bycatch monitoring mandates of the
MSA are funded and are given time for a sufficient body of data to be
developed upon which to base such estimates.
Response: NMFS supports the inclusion of bycatch estimates in TACs
and their consideration in other fishery management measures to the
extent that adequate scientific data exist for doing so.
3. Limits on Directed Catch and Bycatch in Each Fishery
Comment 1: One commenter objected to having NMFS set absolute
limits on the amount of bycatch that can occur, and specifically
opposed the petition's recommendation that a fishery be closed when a
bycatch quota is met. The commenter stated the objections were based on
the fact that bycatch is already considered when setting TAC for Gulf
of Mexico RFMC-managed finfish stocks, and that the bulk of the bycatch
in this area has already been reduced to the level practicable by gear
technology.
Response: NMFS believes that the level of bycatch for managed
species should be considered in the setting of TACs, whether the
acceptable level of bycatch is considered prior to setting of TACs for
target species as in the Gulf of Mexico RFMC instance referred to by
this commenter, or whether a bycatch quota is included in the actual
TAC as in the NPFMC. However, reaching a specified bycatch limit may
not necessarily require closure of the fishery, particularly when other
mitigating measures are in place (e.g., reaching the bycatch limit may
trigger an area closure or gear restriction). What is most important is
that available information on bycatch should be used in formulating
regulatory measures to manage fisheries, including fishery closures,
where appropriate.
Comment 2: One commenter indicated that the South Atlantic RFMC
would evaluate setting absolute limits on direct catch and bycatch for
each fishery and closing the fishery when the limit is met, as
additional data become available and if other approaches are not better
suited.
Response: NMFS believes that RFMCs should consider all feasible
approaches, such as direct catch and bycatch limits, when devising ways
to mitigate bycatch.
Comment 3: One commenter stated that most Pacific RFMC fisheries
are managed according to optimum yields and believes that total
mortality should be the guiding criterion in fishery closure
considerations if stock sustainability is the main concern. The
commenter expressed the belief that decisions to limit bycatch for the
purpose of minimizing waste, which are regulatory discards or economic
discards that are not conservation problems, are best made on a case-
by-case basis through the RFMC process.
Response: NMFS agrees with the comment.
Comment 4: One commenter disagrees that absolute bycatch limits
should be used to close fisheries. The commenter stated that NMFS does
not currently have the resources or capability to monitor bycatch, and
believes it would be impossible to estimate bycatch on a timely basis
and use such quotas as a trigger to close fisheries.
Response: To the extent that NMFS has the resources and
capabilities to accurately monitor bycatch on a timely basis, such
information could be used to trigger fishery closures if appropriate.
For instance, Alaska Region managers are able to open and close
groundfish fisheries in the Bering Sea and Aleutian Islands and in the
Gulf of Alaska based on attainment of bycatch quotas. However, in some
cases, especially with protected resources in which populations are
extremely depleted, the interactions are rare and may vary greatly over
time and area; thus, the level of observer coverage needed to identify
a trigger and effectively respond may not be feasible at this time. In
such instances, NMFS will seek to identify other means to monitor
levels of take, as
[[Page 11507]]
required within biological opinions and the MMPA.
Comment 5: One commenter expressed the belief that limits on catch
and bycatch should be set, but stated that, as long as bycatch is
counted against the TAC, there is no need to close a fishery when some
predetermined bycatch limit is reached. The commenter suggests that
reserve measures, such as area closures, gear restrictions or similar
measures, should be developed on a case-by-case basis that would be
triggered when the bycatch limit is reached.
Response: NMFS believes the comment is reasonable and that reaching
of a bycatch limit may not necessarily require the closure of the
fishery, particularly when other mitigating measures such as area
closures or gear restrictions are in place and can adequately address
any impacts that the bycatch may be having on the marine resource. Each
fishery needs to be evaluated to determine the best means to mitigate
bycatch.
Comment 6: One commenter suggested that NMFS identify catch limits
of target and non-target species for each fishery, focusing first on
populations that are most overfished. The commenter expressed support
for moving toward absolute limits on bycatch in select fisheries based
on status of the stocks and the life histories of all species affected
by the fishery.
Response: NMFS generally agrees with the comment and particularly
agrees with the need to set catch limits for target and non-target
populations that are most overfished.
Comment 7: One commenter expressed the belief that the forced
closure of fisheries when bycatch limits are reached ignores the ``to
the extent practicable'' limitation of MSA national standard 9, the
``optimum yield'' requirements of MSA national standard 1, and the
fishing community protection requirements of MSA national standard 8.
Instead, the commenter supports the prohibited species catch (PSC)
limits approach where practicable as employed by the NPFMC and NMFS in
North Pacific fisheries (i.e., NPFMC exempting certain PSC bycatch
limits when bycatch is negligible - low enough to make further
reduction unnecessary from a biological standpoint and impracticable
from a socio-economic standpoint).
Response: NMFS supports the flexibility that each RFMC has in
developing appropriate conservation and management measures consistent
with the MSA. At the same time, RFMCs and NMFS must consider the impact
of the recommended and alternative actions on the environment.
Comment 8: One commenter opposed setting absolute limits on
directed catch and bycatch because in many cases sufficient information
is not available to even grossly estimate such limits for target
species, let alone non-target species. The commenter supports
incorporating such limits within FMPs once sufficient monitoring data
is available to develop such limits.
Response: Normally NMFS does not support the incorporation of
directed catch or bycatch limits for purposes of closure where
sufficient monitoring data are not available. There may be instances
where directed catch or bycatch limits need be imposed, based on the
best available information, in order, for example, to safeguard a
protected species or an overfished stock.
4. Bycatch Assessment and Reduction Plans
Comment 1: One commenter indicated that a requirement for observer
programs for fisheries in which bycatch does not occur would be an
onerous and costly strain on limited management staff and resources.
Response: NMFS agrees that mandatory observer programs for
fisheries that utilize very selective gear or that fully utilize target
and nontarget catch would normally represent an inappropriate strain on
management resources. However, we do not believe that the 4th component
of the petition for rulemaking requests observer coverage for all
fisheries. Rather, the 4th component of the petition requests a
description of the level and type of observer coverage necessary to
accurately characterize total mortality (including bycatch) in a
fishery. Such a description could determine that no observer coverage
is necessary to accurately characterize mortality for certain
fisheries. The approach to standardized bycatch reporting methodology
that NMFS is developing, as discussed below, will be useful in
determining the needs of individual fisheries.
Comment 2: One commenter suggested that for fisheries in which
there are very little available data on bycatch due to very low levels
of bycatch in the fisheries, assessing bycatch within a 12-month period
would require substantial levels of observer coverage, which would be
costly and inefficient effort that would have devastating effects on
fishermen.
Response: We believe that fisheries for which insufficient bycatch
data exist should be subject to increased data collection efforts if
bycatch is perceived to be a problem. Monitoring efforts such as
observer programs are very costly, and limited NMFS resources should be
devoted to fisheries in which bycatch data are poor and where bycatch
is perceived to be problematic. We agree that the 12-month time frame
in the petition for developing, approving, and implementing bycatch
assessment plans for commercial and recreational fisheries would be
infeasible for most fisheries. While 12 months may be feasible for
developing and seeking approval, this time frame would likely be
insufficient for full (non-emergency) rulemaking.
Comment 3: Two commenters indicated that two RFMCs have already
implemented bycatch assessment and reduction plans for almost all of
their fisheries in compliance with national standard 9 in Section 301
of the Sustainable Fisheries Act (SFA).
Response: NMFS agrees that the efforts of various RFMCs over the
past few years to address bycatch have largely accomplished the
objectives of the bycatch assessment and reduction plans described in
the 4\th\ component of the petition for rulemaking. Some RFMCs have
accomplished the objectives more completely than others, and this
variation among RFMCs in addressing bycatch will be assessed by NMFS as
part of its National Bycatch Strategy discussed below. One result of
the assessment may be a checklist for the purpose of ensuring that all
FMPs achieve a standard level of bycatch assessment and reduction.
Comment 4: Several commenters suggested that the petition's 12-
month time frame for completing bycatch assessments and the rulemaking
process would be virtually impossible to comply with due to time-
intensive monitoring requirements and the RFMC process. Another
commenter thought that implementing bycatch assessment and reduction
plans for commercial and recreational fisheries was a good idea but
that a 2-year or even a 5-year time frame would be more appropriate to
allow a realistic amount of time to implement data collection programs
and fishery management plan amendments.
Response: We agree that bycatch assessment and reduction plans for
commercial and recreational fisheries are desirable and believe that
elements of these plans are available for many fisheries in which
bycatch data are abundant. Because other fisheries, especially
recreational fisheries, have not been subject to long-term and rigorous
bycatch assessment and reduction efforts, NMFS agrees that for many
fisheries the 12-month time frame would not realistically allow for the
[[Page 11508]]
implementation of bycatch assessment and reduction plans as outlined in
the 4\th\ component of the petition for rulemaking.
Comment 5: Several commenters suggested that the petition's
directive that NMFS prohibit fishing in any fishery lacking a
functioning bycatch plan 12 months after rulemaking commences
represents an unduly severe burden on the fishing industry.
Response: NMFS has disapproved FMP amendments or portions thereof
that inadequately addressed the bycatch requirements of the SFA.
Examples include the partial disapproval of: Amendment 8 to the FMP for
Pelagic Fisheries of the Western Pacific Region; Amendment 6 to the FMP
for Bottomfish/Seamount Groundfish Fisheries of the Western Pacific
Region; Amendment 12 to the FMP for Summer Flounder, Scup, and Black
Sea Bass (only the bycatch provision for scup was disapproved); and the
generic SFA amendment to all of the Gulf of Mexico FMPs. We believe
that it is worthwhile to investigate the creation of uniform standards
for bycatch assessment and reduction for all FMPs governing commercial
and/or recreational fisheries based on the requirements listed in the
4th component of the petition for rulemaking. Nonetheless, NMFS
believes that total fishing prohibitions for fisheries lacking bycatch
plans within a 12-month time frame are inappropriate.
Comment 6: One commenter indicated that it would be impractical to
assess fishery bycatch in relation to ``the impact of that bycatch on
bycaught species and the surrounding environment'' because such data
are not currently monitored and are unavailable.
Response: NMFS believes that the ecosystem effects of bycatch are
an important consideration of fishery management. Nonetheless, we agree
with the above comment that for many commercial and recreational
fisheries, the ecosystem effects of bycatch are poorly understood due
to monitoring limitations. NMFS has limited resources to fund the
monitoring of bycatch and ecosystem effects of bycatch, and those
resources, including resource-intensive observer programs, have to be
prioritized to address fisheries with problematic levels of bycatch.
Comment 7: One commenter agreed with the petition's requirement
that bycatch plans consider the various species with which a single
fishery interacts, as well as the effects of multiple fisheries on a
single stock, in order to create broad-based plans where the likelihood
of compliance, effective enforcement, and success is optimal.
Response: We agree that these factors should be fully considered
for fisheries where data have been collected on fisheries interactions,
and managers should identify areas where fisheries interaction data are
lacking and create plans to improve data collection. These factors are
considered in most cases during the FMP creation process and addressed
in the National Environmental Policy Act (NEPA) process.
Comment 8: One commenter expressed reservations about the
petition's recommendation to use incentives for those who use gears
that produce less bycatch because of unintended consequences that might
occur when segments of the fishing industry change gears from a gear
that causes one type of bycatch problem to another gear that causes a
different type of bycatch problem.
Response: NMFS recognizes this problem and strives to fully analyze
the various consequences of management actions, whether they be closed
areas, gear restrictions, or fishermen's incentives.
Accomplishments and Ongoing Activities
NMFS and the RFMCs have undertaken many activities to both quantify
and reduce bycatch. The most successful of these have required a
comprehensive understanding of the type of and cause of bycatch, and
cooperation between NMFS scientists, managers, RFMCs, and the fishing
industry in implementing measures that are effective in reducing
bycatch yet result in minimal impacts to fishermen.
NMFS is in the process of compiling summary information on a
regional basis that identifies: bycatch species (fish, sea turtles,
marine mammals, seabirds, corals); bycatch data collection methods
being used (logbooks, observer programs, dockside sampling, etc.);
percentage of coverage in observed fisheries; bycatch estimates where
available; gear requirements or prohibitions; and other management
measures being used to reduce bycatch. This summary information is
being compiled in matrix form and will be made available in the near
future on a dedicated NMFS bycatch website (http://www.nmfs.noaa.gov/
bycatch.htm
) linked from the NMFS homepage. NMFS plans for its new
bycatch website, unveiled in January 2003, to eventually contain
information about bycatch regulations and policy, bycatch-reduction
research, bycatch experts, bycatch data sets, conferences/workshops,
and technology-transfer efforts that will assist the public in
understanding the bycatch problem, the efforts that have been taken and
are being taken to address the bycatch problem, and the commitment of
NMFS to meeting its bycatch goal. Following are some examples of
progress made to date to quantify and reduce bycatch, and a summary of
key ongoing activities.
A. Gear Technology and Fish Behavior Research
Prior to the enactment of the SFA, NMFS established a national team
which produced the 1998 report Managing the Nation's Bycatch available
at http://www.nmfs.noaa.gov/bycatch.htm. This comprehensive report
at http://www.nmfs.noaa.gov/bycatch.htm. This comprehensive report
identified a number of high-priority needs in the area of gear
technology and selectivity and fish behavior research. As is described
below, some of the research has been devoted to fisheries interactions
that are not defined as bycatch in the SFA, because the SFA defines
bycatch in terms of fish, which is defined as ``finfish, mollusks,
crustaceans, and all other forms of marine animal and plant life other
than marine mammals and birds''. However, Managing the Nation's Bycatch
expanded the management concept of bycatch to include marine mammals,
and seabirds. In 2001, NMFS formed the NMFS Gear Technology Working
Group, and this group is helping to organize national priorities for
gear technology research and ensure sustainable funding.
At the Alaska Fisheries Science Center (AFSC), gear technology
research and research on the behavioral responses of fish both to
fishing gear and to the stresses imposed by coming in contact with
fishing gear have contributed substantially to efforts to address the
bycatch problem. Species-specific differences in the response to
fishing gear have been identified and used to develop gear
modifications that increase the escapement of juvenile fish and other
fish that would be discarded if caught. Examples of the gear
modifications that have been developed include: (1) excluder grates to
decrease halibut bycatch in the Alaska flatfish and Pacific cod trawl
fisheries; (2) trawl modifications to decrease rockfish bycatch in west
coast sole fisheries; (3) grates and square mesh in trawl codends to
reduce the bycatch of juvenile pollock in the Alaska pollock fisheries;
and (4) excluders and large mesh to reduce skate bycatch in Alaska
trawl fisheries. Research on the differences in the responses of salmon
and pollock to trawl gear has been completed and it is
[[Page 11509]]
expected to result in the development of gear modifications to decrease
salmon bycatch in the pollock fisheries. These types of fish behavior
and gear technology research have generally been successful in
identifying and implementing gear modifications that increase the
escapement of select species of sizes of fish.
Additionally, in gear research conducted by the Washington Sea
Grant Program (WSGP) and partially funded by a NOAA Saltonstall-Kennedy
grant, seabird avoidance gear devices for use in the groundfish and
halibut longline fisheries off Alaska were tested and found to
significantly reduce the incidental catch of seabirds. NMFS is in the
process of revising regulatory requirements for longline vessel
operators off Alaska, based on this WSGP research.
As new methods are developed for increasing the escapement of
select species or sizes of fish, there is an increased need to estimate
escapement mortality. If the escapement mortality rates are very high,
increased escapement simply replaces one type of bycatch mortality
(e.g., discard mortality) with another type of bycatch mortality (i.e.,
escapement mortality), and the latter is unobserved, and, therefore,
often more difficult to estimate. Examples of escapement and discard
mortality research being conducted by the AFSC include: (1) research to
determine the escapement mortality rate for juvenile pollock and to
develop methods and equipment for use in future survival studies; (2)
research on the factors that affect the escapement and discard
mortality rates for halibut; and (3) research on the injury rates of
red king crab that encounter and escape bottom trawl footropes on the
sea floor.
At the Southwest Fisheries Science Center (SWFSC), satellite
tracking of sea turtles is revealing significant new information on sea
turtle habitat, movement patterns, and post-hooking survival.
Approximately 50 turtles have been tracked with conventional ARGOS
transmitters, and about 20 turtles have been tracked with 'pop-up'
satellite tags. ARGOS transmitters indicate that sea turtles survive
for many months after release from longline gear. The pop-up tags will
provide more long-term information on post-hooking survival rates
indicating whether turtles survive for 6 months or longer after release
from longline gear. Post-hooking survival is also being correlated with
the condition of released turtles.
SWFSC scientists have initiated research to develop gear and
technique modifications to reduce the incidental take of sea turtles in
the Hawaii-based pelagic longline fishery. The development of turtle-
safe longline gear and turtle-safe fishing techniques are also needed
to foster collaborative efforts with foreign fishing fleets in
addressing the sea turtle bycatch problem on a world-wide basis.
Although the research has been stalled due to litigation, NMFS remains
committed to finding cost-effective approaches for protecting and
conserving sea turtles while sustaining our domestic longline
fisheries.
In 2001, the Southeast Fisheries Science Center, in cooperation
with the U.S. pelagic longline fishing industry, the SWFSC, the
Northeast Fisheries Science Center, and the University of Florida,
began a research effort to investigate the feasibility of gear
modifications and fishing practices to reduce the incidental capture of
endangered and threatened sea turtles by pelagic longline fishing gear.
NMFS gear specialists are working with fishermen and state and
university researchers to gain insight into fishing gear and fishing
practices to develop mitigation measures to reduce turtle interactions
with longline gear. Prototype mitigation techniques are being developed
using captive reared turtles in controlled experiments and these
techniques are being evaluated on commercial fishing vessels in the
Atlantic pelagic fishing grounds. These studies are ongoing and include
evaluation of de-hooker and line cutter prototypes to allow removal of
fishing gear from turtles; bait types and hook designs developed to
reduce hooking rates and the severity of hooking of sea turtles;
satellite tags to determine survival, distribution, and behavior of sea
turtles released from fishing gear; and operational changes in fishing
practices to reduce turtle interactions.
There have been several successful efforts by commercial fishermen
and scientists in the Northeast to develop fishing gear with greater
selectivity for a particular species, thus allowing the commercial
fishing industry access to areas that have been closed to fishing due
to declining groundfish stocks or entanglement mortality of marine
mammals. Most notable among bycatch reduction efforts has been the use
of sound producing devices called ``pingers'' in the sink gillnet
fishery. Pingers that emit intervals of high frequency sound work well
in deterring harbor porpoise from being entangled in fixed sink
gillnets. In addition, various configurations of fish excluder devices
have been tested and proven successful for the Northern shrimp fishery,
which utilizes small-mesh net materials that are capable of catching
groundfish species as bycatch.
The Nordmore grate was introduced to the Northwest Atlantic shrimp
fishery after successful deployment by northern European shrimp
fishermen. This grate allows large fish to slide up and out of the net,
while at the same time allowing the smaller shrimp to pass through the
grate into the codend for harvest. Shrimp fishing has been demonstrated
to be more efficient using the grate. The Pandalid shrimp fishery has
been successful in reducing finfish bycatch, particularly bycatch of
Atlantic cod, to less than 5 percent of total catch in most areas.
Current research projects are looking at similar grates with horizontal
configurations to allow harvest of flatfish such as flounders while
protecting round fish such as cod, haddock, and pollock.
Similar small mesh fisheries in waters off the coast of
Massachusetts and Georges Bank targeting silver hake or whiting have
benefitted from the development of otter trawl gears with ``raised
footropes.'' Cape Cod and Massachusetts Bay fishermen developed and
tested the raised footrope trawl to protect flounder species while
allowing fishing for whiting during summer months. This innovative gear
has reduced flounder bycatch in the whiting fishery by as much as 40
percent to 50 percent. The raised footrope trawl has been incorporated
into the Georges Bank groundfish management plan and is being further
tested in the Gulf of Maine. Additionally, various configurations are
being researched using numerous short vertical dropper chains attached
to the mouth of the net instead of the long horizontal ``tickler''
chain that is attached below the mouth of the net.
B. NMFS Observer Programs
Observers provide the most reliable source of high quality,
objective, fishery-dependent data. Observers provide information on all
aspects of fishing operations, including total removal levels of catch
and bycatch, biological samples and weights and measurements for life
history research, temporal and spatial fishing strategies, and socio-
economic data on fish loss and operating costs. They assist in special
research activities, such as tagging and tracking of released animals.
They also collect oceanographic and climate data for an ecosystem
approach to fisheries and protected species management.
NMFS has seen an expansion in observer programs since the passing
of the SFA. This has partly been in response to national standard 9,
which
[[Page 11510]]
requires that FMPs include conservation and management measures, to the
extent practicable, that (a) minimize bycatch and (b) to the extent
bycatch cannot be avoided, minimize the mortality of such bycatch.
Observers provide a reliable platform for observations regarding
bycatch-data that may not be available through other sources if there
is release or discard of unwanted catch at sea.
NMFS has approved and implemented 43 FMPs (41 of these were
developed by RFMCs) and manages 143 distinct fisheries within these
FMPs under the authority of the MSA. Another 178 fisheries operate in
Federal waters that are currently not managed under an FMP. Since 1996,
the number of commercial fisheries observed has doubled from 13 to 26
fisheries. In addition, NMFS observes a limited number of recreational
fisheries. For example, NMFS' large pelagics survey conducts at-sea
observations of catch (including bycatch) by headboats that target
Atlantic highly migratory species (HMS). Also, NMFS plans to implement
a new data collection methodology utilizing on-board observations of
catch (including bycatch) for headboats in non-HMS Atlantic
recreational fisheries as part of NMFS' Marine Recreational Fisheries
Statistics Survey.
NMFS established a National Observer Program office within the
headquarters Office of Science and Technology in 1999. The mission of
this office is to provide a formalized mechanism for NMFS to address
observer issues of national importance and to develop policies, plans,
and procedures to ensure that observers and observer programs are fully
supported. The policies, plans, and procedures reflect the diverse
needs of regional observer programs while enhancing data quality and
achieving consistency in key areas of national importance. This office
is aided by an intra-agency advisory team comprised of representatives
from each NMFS headquarters office and region. The team functions to
identify issues of national concern, recommending or establishing,
where appropriate, priorities for national research and problem
solving, and supporting information collection and program
implementation. The National Observer Program office has convened
several workshops and an international conference to this end.
In addition to its role in policy development, the National
Observer Program has been a driving force in the development and
tracking of budget initiatives to modernize and expand observer
programs. The program also serves as a clearinghouse for information
regarding each of the regionally-implemented observer programs. General
information about NMFS observer programs can be found on the National
Observer Program's website, at http://www.st.nmfs.gov/st1/nop/.
Observer Program's website, at http://www.st.nmfs.gov/st1/nop/.
C. Selected Accomplishments and Ongoing Activities under the MSA
In the over two decades since enactment of the MSA, the RFMCs and
NMFS have taken many and varied actions to address bycatch. The RFMCs
and NMFS have worked particularly hard to ensure that MSA bycatch
requirements are reflected in management measures after the 1996 SFA
amendments to the MSA focused additional attention on the issue of
bycatch. Regional examples of progress are provided below.
1. Alaska Region: Bycatch Management in the Groundfish Fisheries
The bycatch of Pacific halibut, crab, Pacific salmon, and Pacific
herring in the Alaska groundfish fisheries has been an important
management issue for more than 20 years. To address this problem, the
NPFMC recommended and the Secretary of Commerce approved and
implemented a variety of management actions that were intended to help
control the bycatch of these prohibited species in the groundfish
fisheries. Since the late 1980s, the bycatch of groundfish in the
groundfish fisheries has also been a major management issue. Through
1996, 35 amendments to the BSAI and GOA groundfish FMPs were intended
principally or in part to manage the bycatch of prohibited species and
groundfish.
The initial groundfish FMPs and amendments to them prior to the SFA
included a variety of bycatch management measures, including
prohibitions on the retention of specific non-groundfish species, which
are referred to as prohibited species, time and area closures and
seasonal apportionments of groundfish quotas, gear restrictions,
groundfish quota allocations by gear type, reductions in some
groundfish quotas, extensive at-sea and on-shore observer programs to
monitor bycatch, extensive requirements for reporting catch and product
utilization, prohibited species catch (PSC) limits, a vessel incentive
program (VIP) with civil penalties for fishing vessels that exceed
established bycatch rates for Pacific halibut or red king crab, a
prohibition on roe-stripping, required retention of Pacific salmon
bycatch until counted by an observer, individual fishing quota (IFQ)
management for the fixed-gear Pacific halibut and sablefish fisheries,
target fishery definitions, and careful release regulations for
longline fisheries. Additional measures that initially were considered
before the SFA include: (1) a harvest priority program that would
reserve part of the groundfish quotas or seasons for vessels that meet
specific bycatch standards; (2) regulations that would both prohibit
at-sea discards of the major groundfish species and limit the
percentage of the catch that is not used to produce products for human
consumption; (3) individual transferable bycatch quotas; and (4)
methods to decrease the time between capture and release of Pacific
halibut in groundfish trawl fisheries.
The at-sea observer program has been a critical element of the
bycatch management regime for the Alaska groundfish fisheries for
almost 30 years. The program was developed for the foreign fleets
before the Fishery Conservation and Management Act (FCMA) was
implemented and was extended to the domestic fishery once domestic
vessels had all but replaced foreign fishing and processing vessels.
The observer program resulted in fundamental changes in the nature of
the bycatch problem. First, by providing good estimates of total
groundfish catch and non-groundfish bycatch by species, it eliminated
much of the concern that total fishing mortality was being
underestimated due to fish that were discarded at sea. Second, it made
it possible to establish, monitor and enforce the groundfish quotas in
terms of total catch as opposed to only retained catch. For the
groundfish fisheries, this means that both retained catch and discarded
catch are counted against the TACs. Third, it made it possible to
implement and enforce PSC limits. Finally, it provided extensive
information that managers and the industry could use to assess methods
to reduce bycatch and bycatch mortality. In summary, the observer
program provided fishery managers with the information and tools
necessary to prevent bycatch from adversely affecting the stocks of the
bycatch species. Therefore, the bycatch in the groundfish fishery is
principally not a conservation problem, but it can be a contentious
allocation problem. Although this does not make it less controversial,
it does help identify the types of information and management measures
that are required to reduce bycatch to the extent practicable, as is
required by the MSA.
Several post-SFA amendments to the GOA groundfish FMP were intended
to decrease bycatch, including Amendment 59 (Cape Edgecombe
[[Page 11511]]
Pinnacle Closure) and Amendment 60 (Cook Inlet Bottom Trawl Ban). In
addition, several post-SFA amendments to the BSAI groundfish FMP were
intended to decrease bycatch, including:
(1)Amendment 37, which modified red king crab PSC limits and
established trawl closure areas in nearshore Bristol Bay;
(2)Amendment 39, which established a license limitation system;
(3)Amendment 46, which modified allocation of Pacific cod by gear
type;
(4)Amendment 40, which established PSC limits for C. opilio crab in
trawl fisheries and a bycatch limitation zone;
(5)Amendment 49, which established a mandatory retention program
for pollock, Pacific cod, yellowfin sole and rock sole (IRU); and
(6)Amendment 50, which allowed donation of halibut to foodbanks.
2. Atlantic HMS
In addition to the closed areas (areas of South Atlantic Bight,
Gulf of Mexico, and off New Jersey), observer coverage, reporting
requirements, dead discard accounting, and bycatch limits already in
place for U.S. fishermen, the United States implemented new measures in
2002 to reduce bycatch in Atlantic HMS fisheries. These measures
include:
a. Sea turtle bycatch reduction. New information on the sea turtle
population status led NMFS to conclude that continued operation of the
Atlantic pelagic longline fishery jeopardized endangered leatherback
and threatened loggerhead sea turtles. Accordingly, per the
requirements of a Biological Opinion (June 2001) and a final rule (67
FR 45393), NMFS closed the Grand Banks fishing area to U.S. vessels
using pelagic longline gear. The Grand Banks has traditionally been an
area of high swordfish catch as well as high sea turtle bycatch.
Closure of the Grand Banks should decrease sea turtle bycatch by
approximately 60 to 75 percent overall. The only pelagic longline
fishing by U.S. pelagic longline fishing vessels currently allowed in
the Grand Banks is under an experiment designed to test fishing
techniques that will reduce interactions with sea turtles. Several
other foreign countries fish on the Grand Banks, which is in
international waters, so it is important to develop fishing techniques
that those foreign fleets could use to reduce interactions. In addition
to the closure of the Grand Banks, all longline fishermen are required
in the Atlantic HMS fisheries to carry and use line clippers and
dipnets to disentangle, and follow specific handling and release
techniques to ensure survivability of, sea turtles caught incidentally
to fishing operations.
In support of its domestic actions, the United States has been
pursuing action relative to bycatch reduction measures within the
International Commission for the Conservation of Atlantic Tunas
(ICCAT). ICCAT is the international body charged with coordinating the
management of HMS throughout the Atlantic Ocean and adjacent seas. At
its 2002 meeting, ICCAT adopted a resolution on seabirds that urges
parties to collect and provide data on seabird interactions, including
incidental catches in ICCAT fisheries. ICCAT's science body, the
Standing Committee on Research and Statistics (SCRS), is to assess the
impact of the incidental catch of seabirds in ICCAT fisheries when
feasible and report its findings. The measure also calls on parties to
inform SCRS and the ICCAT Commission of the status of their National
Plans of Action for Reducing Incidental Catches of Seabirds in Longline
Fisheries and to implement the International Plan of Action on seabirds
if they have not already done so. A resolution on sea turtles was
discussed but not adopted at the 2002 ICCAT meeting. Among other
things, the measure called on parties to voluntarily release turtles
incidentally captured and to share information on safe handling; to
collect and report information on sea turtle interactions in all ICCAT
fisheries, and to provide information on other impacts on sea turtles
in the Convention area, such as deterioration of nesting sites. Given
concerns expressed about the proposal and the lack of time for full
discussion, it was agreed that an effort would be made to revise the
proposal after the ICCAT meeting and, if appropriate, to circulate it
for mail vote.
b. Shark finning prohibition (applies in all areas subject to U.S.
jurisdiction. In December 2000, the President signed into law the Shark
Finning Prohibition Act, which bans nationwide the practice of removing
the fins from a shark and discarding the carcass. That Act is intended
to minimize waste and mortality of shark bycatch. On February 11, 2002,
NMFS published a final rule (67 FR 6194-6202) to prohibit persons
onboard any domestic vessel anywhere and foreign fishing vessels in the
U.S. exclusive economic zone (EEZ) from engaging in shark finning, and
to prohibit landing of shark fins without the corresponding carcasses
by domestic and foreign fishing vessels. In addition, the final rule
prohibited imports of fins harvested through the practice of finning.
3. Southwest Region: HMS Bycatch Efforts
The Southwest Region has been supporting the Pacific Fishery
Management Council's (PFMC) efforts to develop an FMP for U.S. West
Coast Fisheries for Highly Migratory Species (HMS FMP). The PFMC
recently adopted the HMS FMP for submission to NMFS for review and
approval in 2003. SFA bycatch requirements were among the critical
aspects of the HMS FMP. The HMS FMP would:
(1)maintain the bycatch reduction achieved by current controls on
HMS fisheries through state and Federal regulatory action under other
authorities (e.g., state laws and regulations, MMPA and ESA);
(2)promote additional reduction through a catch-and-release program
for recreational fisheries, including promotion of fish handling and
release procedures to minimize harm and mortality from catch and
release of HMS; and
(3)establish mandatory observer programs for fishery sectors not
currently observed in order to measure actual bycatch and ultimately
develop new bycatch avoidance and bycatch mortality avoidance gear and
fishing techniques.
It should be noted that the HMS FMP would incorporate measures to
minimize and control the take of sea turtles in the drift gillnet
fishery for swordfish and sharks. The HMS FMP also would include
provisions requiring that U.S. longline vessels operating out of the
West Coast employ seabird avoidance gear and techniques as required of
U.S. longline vessels operating under Western Pacific longline limited
entry permits. The FMP also would prohibit West Coast based longline
vessels fishing west of 150[deg] W. long. from engaging in swordfish
targeting (i.e., they would be under the same controls as longline
vessels with Western Pacific longline limited entry permits). The FMP
also would include framework procedures to facilitate rapid adoption of
new measures as new problems are identified or solutions are developed,
including measures to resolve future bycatch problems. Finally, under
the FMP as approved late in 2002, West Coast based longline vessels
would have been permitted to target swordfish if fishing east of
150[deg] W. long. However, in response to a request from the Southwest
Region, the PFMC has agreed to delay submitting the FMP to allow NMFS
to conduct a rigorous scientific review of new data to determine if
this would pose too high a risk of an unacceptable level of
[[Page 11512]]
interactions with sea turtles. The PFMC will discuss this matter at its
March 2003 meeting and may reconsider its decision on this measure in
June 2003.
4. Southwest Region: Pelagic Longlining and Sea Turtles
In June 2002, NMFS issued a final rule implementing a regulatory
amendment under the Fishery Management Plan for the Pelagic Fisheries
of the Western Pacific Region intended to minimize or prevent, injury
to and mortality of sea turtles accidentally caught by hook-and-line
fishing. The intent of the rule is to reduce interactions between
endangered and threatened sea turtles and pelagic fishing gear and to
mitigate the harmful effects of interactions that occur. The rule
applies to the owners and operators of all vessels fishing for pelagic
species under Federal western Pacific limited access longline permits
(longline vessels) within the U.S. EEZ and the high seas around Hawaii,
as well as those fishing for pelagic species with other types of hook-
and-line gear (non-longline pelagic vessels) within the EEZ around
Hawaii, American Samoa, Guam, the Commonwealth of the Northern Mariana
Islands, Midway, Johnston and Palmyra Atolls, Kingman Reef, and Wake,
Jarvis, Baker, and Howland Islands (western Pacific region). This rule:
(1) prohibits targeting swordfish north of the equator by longline
vessels; (2) closes all fishing to longline vessels during April and
May in waters south of the Hawaiian Islands (from 15[deg] N. lat. to
the equator, and from 145[deg] W. long. to 180[deg] long.); (3)
prohibits the landing or possession of more than 10 swordfish per
fishing trip by longline vessels fishing north of the equator; (4)
allows the re-registration of vessels to Hawaii longline limited access
permits only during the month of October; (5) requires all longline
vessel operators to annually attend a protected species workshop; and
(6) requires utilization of sea turtle handling and resuscitation
measures on both longline vessels and non-longline pelagic vessels
using hook-and-line gear.
5. Southeast Region: Gulf Shrimp Bycatch
Shrimp trawls have a significant, inadvertent bycatch of non-target
finfish and invertebrates. Important fish species in the shrimp fishery
bycatch include juveniles of red snapper, king and Spanish mackerel,
and sharks. Current estimates indicate that roughly 34 million-juvenile
red snappers are caught annually by shrimp trawlers, with approximately
an 88-percent mortality rate. The Gulf of Mexico Fishery Management
Council (GMFMC) developed Amendment 9 to the Fishery Management Plan
for the Shrimp Fishery of the Gulf of Mexico (Gulf Shrimp FMP) which
went into effect in 1998 to reduce the bycatch of juvenile red snappers
while, to the extent practicable, minimizing adverse effects on the
shrimp fishery. Amendment 9 requires the use of NMFS-certified bycatch
reduction devices (BRDs) in shrimp trawls towed in certain areas of the
Gulf of Mexico exclusive economic zone. To be certified, these BRDs, in
conjunction with a vessels turtle excluder device (TED), must reduce
the shrimp trawl bycatch mortality of age 0 and 1 red snapper by a
minimum of 44 percent from the average level of mortality on these age
groups during 1984-89.
The Gulf Fisheye and Jones-Davis BRDs, which were developed by
commercial fishermen, met this criterion and were certified for use
when the final rule implementing Amendment 9 became effective in 1998.
Since 1998, shrimp trawl bycatch mortality of finfish has been reduced
by 40 percent, and a 50 percent reduction appears reasonable with
refinements to the Gulf Fisheye BRD or more extensive use of the Jones-
Davis BRD. Since development of the recovery plan in 1989, directed
landings of red snapper have increased from 3.9 million lbs. (1,769 mt)
in 1990 to 9.12 million lbs. (4,136.8 mt) in 2001. Shrimp landings have
increased since 1998 from 230 million lbs. (104,328 mt) to 256 million
lbs. (116,121.6 mt) in 2001. In addition to reducing the shrimp trawl
bycatch of red snapper, use of the Gulf Fisheye BRD also reduce the
shrimp trawl bycatch of Atlantic croaker, spot, and butterfish
significantly.
6. Northwest Region
In March 2002, NMFS implemented a final rule for its groundfish
annual specifications and management measures. This regulatory package
notably revised the PFMC approach to managing of fisheries to reduce
bycatch and discard of overfished groundfish species. This new approach
calculated the co-occurrence of overfished species taken in fisheries
for more abundant stocks. In analyzing these co-occurrences, analysts
found seasonal variations in the rates at which overfished species were
taken in fisheries for more abundant species. The PFMC then used this
co-occurrence analysis to set trip limits and other management measures
such that the groundfish fisheries had more access to abundant stocks
during periods when overfished species co-occurrence rates were low.
Further, the co-occurrence ratios were used to guide the PFMC's
recommendations during the year so that no changes to management
measures would result in increased bycatch and/or discard of overfished
species.
In May 2002, NMFS implemented a bycatch allowance for Pacific
halibut in the commercial, limited entry primary sablefish fishery in
Federal waters between the U.S./Canada border and Pt. Chehalis,
Washington. Retention of incidental halibut caught in the primary
sablefish fishery is only allowable when the overall Washington,
Oregon, California total allowable catch for Pacific halibut is above
900,000 lbs. (408.2 mt) which it was in both 2001 and 2002. For 2002, a
quota of 88,389 lbs. (40.1 mt)of halibut was allocated to the limited
entry primary sablefish fishery as a bycatch allowance.
In September 2002, NMFS implemented new depth-based management
measures in the Pacific Coast groundfish fishery for September-December
2002. These depth-based management measures are designed to allow the
harvest of healthy groundfish stocks while protecting areas where
overfished species are commonly found. An emergency rule established a
darkblotched rockfish conservation area (DBCA) extending from the U.S./
Canada border to 40[deg]10' N. lat. and between approximately 100
fathoms and 250 fathoms. This emergency rule maintained the closure to
trawling with groundfish gear where darkblotched rockfish are commonly
found, but allowed limited entry trawl access to healthy deepwater
groundfish (seaward of 250 fathoms) and nearshore groundfish (shoreward
of 100 fathoms) stocks outside of the DBCA.
Throughout 2002, NMFS has also supported a number of exempted
fishing permits (EFPs) in the Pacific Coast groundfish fishery with the
goal of these EFPs being used to develop fishing technologies that can
be applied on a fleet-wide basis to minimize the bycatch of overfished
species. These EFPs test fishing strategies and/or gear types in an
effort to harvest healthy groundfish stocks while minimizing bycatch of
overfished species. Additionally, many of the EFPs have full retention
programs that allow overages to be forfeited to the states for
charitable donations.
7. Northeast Region
Under the sea scallop Fishery Management Plan, bycatch of finfish
has been reduced by establishing minimum mesh requirements for the net
material on the top of a scallop dredge (referred to as the ``twine
top''). The twine top is
[[Page 11513]]
the primary location where finfish escape the dredge, and larger mesh
improves escapement, especially of flatfish. This mesh size was
increased in 1999 from 5-1/2 inches (13.97 cm) to 8 inches (20.32 cm).
In addition, under some of the access programs that have allowed sea
scallop dredge fishing in areas closed to protect juvenile scallops
and/or Northeast multispecies, the mesh size has been increased to as
much as 10 inches (25.4 cm) to ensure that bycatch is eliminated.
Under the Northeast (NE) Multispecies FMP, a significant bycatch
management measure was implemented beginning in 1994 under a
Secretarial emergency action (and permanently implemented under
Framework Adjustment 9 to the FMP in 1995), and which was made further
inclusive under Amendment 7 to the FMP in 1996. This measure prohibits
all vessels, regardless of what fishery it is targeting, from fishing
in the Gulf of Maine, Georges Bank or Southern New England waters,
unless the vessel is fishing under a NE multispecies or sea scallop
day-at-sea, or unless the fishery has been determined to have less than
5-percent bycatch of regulated NE multispecies, or the vessel is
fishing with handgear or exempted gear (gear deemed not to be capable
of catching NE multispecies).
Other bycatch reduction measures under the NE multispecies FMP
include mesh size restrictions starting in 1982 and increasing over the
years to as high as 6.5 inch (16.51 cm) and 7.0 inch (17.78 cm) mesh
size nets implemented under a recent interim action, some of the
largest mesh sizes for groundfish in the world. Large year-round and
seasonal closure areas have also been implemented under the FMP over
the years to help protect fish when concentrated or when spawning.
Also, gear prohibitions, such as a prohibition on pair-trawling and
brush-sweep trawls, in 1994 and 1999, respectively, have also
contributed to reducing bycatch.
Under the Summer Flounder, Scup, and Black Sea Bass Fishery
Management Plan, NOAA Fisheries, Northeast Region implemented Gear
Restricted Areas (GRAs) in the Mid-Atlantic Bight in 2000. GRAs had
been recommended by the Mid-Atlantic Fishery Management Council (MAFMC)
to reduce bycatch of small scup in small-mesh fisheries. These GRAs
regulate the use of otter trawls with codend mesh less than 4.5 inches
in size in areas and times that were identified as having high scup
discards, specifically by vessels fishing for Loligo squid, black sea
bass, and silver hake (whiting). The Northern GRA (located off the
coast of Rhode Island and New York) is effective November 1 through
December 31; the Southern GRA (extending from southern New Jersey to
the border between Virginia and North Carolina) is operative January 1
through March 15.
D. Selected Accomplishments and Ongoing Activities under the ESA
NMFS is undertaking a proactive program to address sea turtle
bycatch in state and Federal fisheries. On July 31, 2001 (66 FR 39474),
NMFS published a comprehensive strategy to address sea turtle capture
in fishing gear. Numerous fisheries have been implicated in the
incidental capture of sea turtles along the Atlantic and Gulf of Mexico
coasts. Both state and federally managed fisheries are involved as well
as fisheries operating outside of a management plan, including
recreational and international fisheries. Data available on the
magnitude of the problem vary by fishery and area. The issue is a gear-
type problem, rather than a specific target fishery problem. Certain
types of gear are more prone to incidentally capturing turtles than
others, depending on the nature of the gear, the way the gear is
fished, and the time and area within which it is fished. Incidental
take of sea turtles in fisheries has mostly been addressed with ESA
section 7 consultation process on FMPs. This approach does not allow
the integration of state-managed fisheries or fisheries in Federal
waters that are not operating under an FMP and that do not fall under
the requirements of Section 7, since no Federal activity is involved.
Major goals of the sea turtle bycatch strategy are to increase
effectiveness in management and prioritize fishery interaction
concerns. To achieve these goals, NMFS will: (1) continue to improve
stock assessments for each stock/species of sea turtle; (2) improve and
refine estimation techniques for the takes of sea turtles to ensure
that the criteria for recovery are being met consistent with ESA
mandates; (3) continue to improve the estimation or categorization of
sea turtle bycatch by gear type and fishery; (4) evaluate the
significance of bycatch by gear type; (5) convene specialist groups to
prepare plans for reduction of takes for gear types with significant
levels of take; and (6) promulgate ESA and MSA regulations implementing
plans developed for take reduction by gear type.
E. Selected Accomplishments and Activities under the MMPA
The MMPA provides a complex system for controlling bycatch of
marine mammals by commercial fisheries. NMFS implements this system
through regulations at 50 CFR Part 229 for authorization for commercial
fisheries under the MMPA and several other inter-related programs and
actions. NMFS' Office of Protected Resources works with the National
Observer Program to provide observer coverage under the MMPA. NMFS
summarizes observer data in stock assessment reports, which NMFS
prepares and periodically updates in accordance with the MMPA. In these
stock assessment reports, NMFS estimates bycatch of marine mammals by
commercial fisheries as provided under the MMPA. Stock assessment
reports provide much of the data that NMFS uses to classify fisheries
and publish the List of Fisheries under the MMPA.
NMFS implements bycatch reduction of marine mammals under the MMPA
through take reduction teams and plans. The MMPA provides that NMFS
must develop and implement a take reduction plan designed to assist in
the recovery or prevent the depletion of each strategic stock of marine
mammals that interacts with commercial fisheries that have frequent
(Category I) or occasional (Category II) incidental mortality and
serious injury of marine mammals. The MMPA provides the process by
which NMFS is to develop take reduction plans through take reduction
teams. Plans may include several types of measures to protect or
restore marine mammal stocks, including fishery specific limits on
bycatch, time or area restrictions, alternative gear or techniques and
new technologies, education of commercial fishermen, and monitoring the
effectiveness of such measures. NMFS must take a draft take reduction
plan developed by the take reduction team into consideration and
explain the reasons for any changes proposed by NMFS when publishing
the plan and proposed regulations to implement the plan in the Federal
Register. Given this process and these requirements, NMFS implements
the take reduction team's draft plan to the maximum extent feasible
given the goals of the MMPA and other legal requirements.
NMFS does not have sufficient funds available to develop and
implement take reduction plans for all of these stocks, because there
are considerable costs and personnel demands associated with the
development of take reduction plans, including convening the take
reduction team (which must include government and non-government
representatives from various sectors), providing for team travel
expenses, obtaining and preparing the data necessary to support team
deliberations and devise take
[[Page 11514]]
reduction strategies, researching alternative gear technologies,
holding skipper workshops, monitoring the fishery, and enforcing the
regulations in order to implement the plan. The MMPA provides that, if
there is insufficient funding available to develop and implement a take
reduction plan for all such stocks, then NMFS must use several factors
to prioritize development and implementation of take reduction plans.
NMFS has followed this provision to prioritize development and
implementation of Pacific Offshore Cetacean, Harbor Porpoise, and
Atlantic Large Whale take reduction plans. In addition, NMFS is in the
process of developing a take reduction plan with the Western North
Atlantic coastal bottlenose dolphins take reduction team. Finally, NMFS
disbanded the Atlantic Offshore Cetacean take reduction team in August
2001, because the nature of the fisheries that were included in a draft
plan had changed tremendously since 1996, when the take reduction team
was convened and prepared a draft plan. NMFS is compiling data
necessary for any take reduction plan or plans for marine mammal stocks
that were addressed by this team.
Implementation of these take reduction plans provide examples of
accomplishments in reducing bycatch of marine mammals. In 1997, NMFS
issued regulations to implement the Pacific Offshore Cetacean Take
Reduction Plan addressing incidental takes of beaked whales, pilot
whales, pygmy sperm whales, sperm whales, and humpback whales in the
California Oregon thresher shark/swordfish drift gillnet fishery.
Management efforts included use of new technology (pingers, i.e.,
acoustic deterrent devices), gear modifications (lowering the depth of
the net in the water column), outreach (mandatory skipper workshops),
and permitting changes (to limit expansion of the fleet). In 1998, the
team determined that the fishery had achieved the MMPA's immediate goal
of reducing incidental mortality and serious injury below the potential
biological removal (PBR) level for the strategic marine mammal stocks
addressed by the plan. Efforts continue to ensure that bycatch remains
less than PBR and that the MMPA's long-term goal is achieved of
reducing incidental mortality and serious injury to insignificant
levels approaching a zero mortality and serious injury rate.
In 1998, NMFS issued regulations to implement the Harbor Porpoise
Take Reduction Plan addressing incidental takes of harbor porpoise in
the Northeast sink gillnet fishery and the Mid-Atlantic coastal gillnet
fishery through the use of pingers, gear modifications, and closures.
Prior to implementation of this take reduction plan and fishery
management plan actions intended to reduce harbor porpoise bycatch, an
estimated 1,521 harbor porpoise died each year from interactions with
these fisheries. Bycatch in both fisheries was dramatically reduced in
1999, 2000, and 2001 to levels below the PBR level in all three years.
Efforts continue to ensure that bycatch remains less than the PBR level
and that the MMPA's long-term goal is achieved.
Other marine mammals have been the focus of bycatch or entanglement
reductions studies and regulations. In 1999, NMFS issued regulations to
implement the Atlantic Large Whale Take Reduction Plan addressing
incidental takes primarily of North Atlantic right whales, but also
humpback, fin, and minke whales, in Atlantic lobster trap/pot and
gillnet fisheries. This plan creates a regulatory (e.g., gear
modifications, closures) and non-regulatory (e.g., disentanglement,
gear research) framework for reducing bycatch. Recent efforts include a
number of gear modifications, including requiring that fixed gear with
lines attached to nets and traps have ``weak links.'' These devices are
designed to break in the event that a large whale gets entangled in the
line before the whale becomes more entangled. Atlantic lobster trap/pot
and gillnet fisheries are now required to have weak links at various
intervals on their fishing gear. In order to further protect right
whales, NMFS has instituted Dynamic Area Management and Seasonal Area
Management regulations to restrict fishing in areas where and times
when right whales congregate to feed and are vulnerable to becoming
entangled in lines from fixed fishing gear.
F. Progress in NMFS's Commitment to Reducing Incidental Catch of
Seabirds
In 1999, the United Nations' Food and Agricultural Organization
(FAO) adopted an International Plan of Action for Reducing the
Incidental Catch of Seabirds in Longline Fisheries (IPOA-Seabirds). The
IPOA-Seabirds is a voluntary measure under which FAO Member States
agree to: (1) assess the degree of seabird bycatch in their longline
fisheries; (2) develop individual national plans of action to reduce
seabird bycatch in their longline fisheries that have a seabird bycatch
problem; and (3) develop a course of future research and action to
reduce seabird bycatch.
In 2000, NMFS participated in the First International Fishers Forum
for Reducing Incidental Catch of Seabirds in Longline Fisheries.
Fishermen, researchers, gear manufacturers, and others met for the
first time and shared ideas, research plans, and codes of industry
practices.
Then in February 2001, NMFS announced its U.S. National Plan of
Action for Reducing the Incidental Catch of Seabirds in Longline
Fisheries (NPOA), that was developed in cooperation with the U.S. Fish
and Wildlife Service (USFWS) and the Department of State. Under the
NPOA, NMFS is committed to: (1) assessing U.S. longline fisheries for
seabird bycatch by February 2003 (including use of and expansion of
existing observer programs); (2) implementing measures to reduce
seabird bycatch within 2 years of determining a problem exists; (3)
preparing an annual report on status of seabird bycatch mortality for
each longline fishery; and (4) advocating NPOAs within relevant
international fora.
In 2002, NMFS provided $250,000.00 in assistance to the Western
Pacific Regional Fishery Management Council (WPFMC) in sponsoring the
Second International Fishers Forum for Reducing Incidental Catch of Sea
Turtles and Seabirds in Longline Fisheries held in November 2002. This
forum had grown in scope and enthusiasm from the initial forum in 2000
and was attended by participants from over 28 Nations. The meeting was
very successful in enhancing cooperation with the fishing industry,
fishery agencies, academic institutions, NGOs, and international bodies
on seabird and sea turtle bycatch research and outreach. Efforts are
underway for a Third International Fishers Forum planned for 2004 in
Japan. To fulfill its protected resources obligations, NMFS believes it
is critical for the agency to work side-by-side with the fishing
industry to design gear and alter fishing practices to reduce bycatch,
as well as to monitor and evaluate bycatch and the effectiveness of
bycatch reduction measures.
In order to understand the population-level impacts of incidental
longline bycatch of seabirds and sea turtles, NMFS and the USFWS have
undertaken studies to monitor population status and threats. These
studies have identified numerous threats that continue to impact sea
turtle and seabird populations.
Under the MSA, NMFS has taken action to prevent further impacts on
seabirds and sea turtles, including implementation of bycatch reduction
techniques for seabirds and area closures to reduce interactions with
sea
[[Page 11515]]
turtles. In recent years NMFS has promoted the development and use of
practical and effective seabird and sea turtle management and
mitigation measures by longline fishermen. A research program conducted
by the Washington Sea Grant Program (WSGP) concluded that paired
streamer lines effectively reduced seabird bycatch, compared to a
control of no deterrents, by 88-100 percent. Regulatory requirements
are being revised to reflect results from this research. This summer,
the WSGP embarked on yet another study to test the effectiveness of
seabird mitigation measures, this time testing the effectiveness of
faster-sinking demersal gear at reducing seabird bycatch. Data are
still coming in, but this technology looks very promising both as a
seabird deterrent and as a gear that requires less handling on auto-
liners. This kind of gear is being collaboratively tested on longliners
in New Zealand.
A NMFS study in Hawaii found that blue-dyed bait and weights added
to baits reduced the number of black-footed albatross gear interactions
by approximately 90 percent. In addition, a highly successful pilot
study was recently conducted in Hawaii on an underwater chute-setting
device. This study included the Hawaii Longline Association, NMFS, the
WPFMC, and the National Audubon Society, Bird Life International's U.S.
partner. It found that underwater line-setting effectively reduced
seabird bycatch, compared to a control of no deterrents, by 95-100
percent.
In 2002, NMFS implemented permanent seabird-specific mitigation
measures (67 FR 34408, May 2002) recommended by the WPFMC to help
reduce seabird interactions in the Hawaii-based longline fishery. Along
with sea turtle conservation measures (67 FR 40232, June 12, 2002),
including a prohibition on shallow setting for all Hawaii longline
vessels fishing north of the equator, the seabird mitigation measures
(i.e., use of thawed, blue-dyed bait, line setting machine or
traditional basket-style longline gear, and strategic discard of offal)
north of 23[deg] N. lat., resulted in less than 50 seabird interactions
observed in 2002, compared with about 160 interactions in 2001, and
nearly 250 interactions in 2000. The reduction in seabird interactions
occurred while NMFS was increasing observer coverage levels in the
Hawaii longline fishery from 10 percent in 2000 to 23 percent in 2001,
and to little more than 25 percent in 2002.
In the North Pacific, NMFS collaborated with Washington Sea Grant
Program for the 2002 bycatch avoidance workshops for commercial
longliners in Alaska ports. The NPFMC is changing existing regulations
for seabird avoidance measures required in the groundfish and halibut
hook-and-line fisheries off Alaska, and NMFS is promoting the USFWS
free streamer line program in Alaska.
Also, in 2002 NMFS added seabird bycatch issue to agendas of
several bilateral fisheries meetings to highlight the issue and promote
and encourage implementation of FAO's IPOA-Seabirds. NMFS has placed or
supported the placement of seabird bycatch on the agenda of the
meetings of several international organizations (Asia Pacific Economic
Cooperation (APEC), Commission for the Conservation of Antarctic Marine
Living Resources (CCAMLR), and ICCAT). NMFS has also formed a bycatch
reduction task force that will be seeking ways to address the issue of
seabird issues in the international arena.
NMFS is also working to implement Executive Order 13186, signed by
the President on January 10, 2001 (66 FR 3853), on the responsibilities
of Federal agencies to protect migratory birds under the Migratory Bird
Treaty Act and other laws. NMFS, in cooperation with USFWS, is drafting
a Memorandum of Understanding to identify strategies that promote
conservation of migratory birds through enhanced collaboration between
NMFS and USFWS, in coordination with state, territorial, tribal, and
local governments.
G. International Activities to Reduce Bycatch
For several years NMFS has been engaged in ongoing activities, on a
bilateral basis and through regional fisheries management
organizations, seeking international bycatch assessment and bycatch
reduction. Annual reports to Congress assessing the need for
international bycatch agreements required by section 202(h) of the MSA
have been made since 1996. In addition, an International Bycatch
Reduction Task Force has been created whose activities are included in
the most recent 202(h) report to Congress.
1. Activities Pursuant to Sec. 202(h) of the MSA
Section 202(h)(1) of the MSA directs the Secretary of State, in
cooperation with NMFS, to secure international agreements to establish
standards and measures for bycatch reduction that are comparable to the
standards and measures applicable to U.S. fishermen. Section 202(h)(3)
of the MSA requires NMFS, in consultation with the Secretary of State,
to submit an annual report to Congress describing actions taken
regarding potential international bycatch agreements pursuant to
Section 202(h)(1) of the Act.
NMFS reviews management measures under all approved and implemented
FMPs that address fish stocks also harvested by foreign fishermen to
identify relevant bycatch standards and measures. In the report
covering the period September 2000-December 2001, NMFS concluded, and
the Department of State concurred, that pursuing international bycatch
agreements pursuant to Section 202(h) of the MSA continued to be
necessary and appropriate to address sea turtle bycatch in longline
fisheries in both the Atlantic and Pacific Oceans. As a result, an
international strategy, referred to as the Course of Action to Promote
International Agreements that Address the Need to Reduce Sea Turtle
Bycatch in Foreign Longline Fisheries, was developed to address this
issue.
2. International Bycatch Reduction Task Force
In January 2002, NMFS convened an International Bycatch Reduction
Task Force made up of NMFS and U.S. Department of State
representatives. A Plan of Action was subsequently developed by the
Task Force to: (1) implement the strategy to promote international
agreements that reduce sea turtle and seabird bycatch in foreign
longline fisheries; and (2) promote the implementation of the Food and
Agriculture Organization (FAO) International Plan of Action (IPOA) for
Reducing Incidental Catch of Seabirds in Longline Fisheries and the FAO
IPOA for the Conservation and Management of Sharks.
The Task Force Plan of Action outlines steps to be taken in
implementing the U.S. strategy for international bycatch reduction.
These tasks are broken up into two categories: international sea turtle
workshops, and international communications relating to sea turtles,
sharks and seabirds.
a. International Sea Turtle Workshops. The Task Force has engaged
in a number of activities in support of international sea turtle
workshops during 2002. A steering committee has been formed to guide
the planning and execution of a NMFS-sponsored international technical
workshop on sea turtle bycatch in longline fisheries during February
2003. This workshop: examined global and seasonal fleet distributions
and effort; compared gear different configurations; looked at target
species; compared existing regulatory regimes; and reviewed on-going
bycatch reduction research. Diplomatic
[[Page 11516]]
communications (demarches) were sent to longlining states (and Taiwan)
announcing the workshop and requesting information on sea turtle
interactions in their longline fisheries. The workshop was attended by
197 countries. Additionally, the workshop and other sea turtle
initiatives have been promoted in regional fisheries management and
bilateral meetings.
Scientific activities undertaken in support of the NMFS sea turtle
workshop include an October 2002, NMFS staff review of preliminary
results of on-going research relating to the reduction of sea turtle
bycatch in longline fisheries. The results of this in-house review were
presented during sea turtle discussions in November 2002 at the Second
International Fisher's Forum to Reduce Bycatch of Sea Turtles and
Seabirds in Longline Fisheries. This information was updated as
necessary and was presented at the February 2003 NMFS international
technical workshop on sea turtle bycatch in longline fisheries. The
February 2003 workshop, held in Seattle, WA, included participants
representing 20 nations. The purpose of convening the workshop was to
share information on global longline fisheries and to share ideas and
information on experiments and solutions to reduce the bycatch of
turtles in longline fisheries where interactions occur.
b. International Communications Relating to Sea Turtles, Sharks and
Seabirds. The United States has communicated through diplomatic
channels with flag states with significant longline fleets (and
Taiwan). As noted above, a demarche relating to sea turtles was made
that emphasized the international nature of the sea turtle bycatch
problem in longline fisheries, described steps that the United States
is taking to address this problem, and requested that recipients
provide information relative to sea turtle bycatch in longline
fisheries. The demarche announced the date and location of the
International Longline Sea Turtle Bycatch Technical Workshop. The
United States will also make similar demarches to Executive Secretaries
(or equivalent) of regional fisheries management organizations or
arrangements in whose area of operation longline fishing occurs during
2002.
Demarches have also been made to flag states with significant
longline fleets (and Taiwan) that requested information on the status
of implementing the IPOAs for Seabirds and Sharks. In these
communications, the United States encouraged: development and
implementation of National Plans of Action for Seabirds, to promote the
reduction of incidental catch of seabirds in longline fisheries where
it occurs; and development and implementation of National Plans of
Actions for Sharks, to promote the conservation and management of
sharks and call attention to the international issue of shark finning.
Additionally, the United States committed to provide information on
topics relating to these IPOAs, including information that may be of
use to states developing a National Plan of Action (NPOA) for Seabirds
and an NPOA for Sharks. This communication provided an overview of the
U.S. Shark Finning Prohibition Act.
During 2002, the United States has used current and new regional
fishery management organizations (RFMOs) and existing bilateral
relationships to call attention to the international problems of sea
turtle bycatch and incidental catch of seabirds and sharks in longline
fisheries. The United States continues to promote international
cooperative efforts to collect standardized information on the
incidence of sea turtle bycatch in longline fisheries and the technical
workshop has been promoted as one forum to receive and consider such
information.
In conclusion, NMFS has made significant progress on research and
management measures to reduce bycatch and NMFS is committed to further
expansion of these activities.
Agency Decision
After carefully considering all public comment, the Assistant
Administrator for Fisheries has determined that the four-part program
requested by the petition does not lend itself to specific rulemaking
at this time. NMFS recognizes that the agency must continue to address
bycatch in many domestic and international fisheries; however, given
the vast array of characteristics among individual fisheries (including
gear usage, fishing conditions, and other factors) and ongoing
initiatives, we do not believe that global/national rulemaking as
requested by Oceana is appropriate. Instead, NMFS believes in a
regional approach working through the existing regulatory processes of
the appropriate legal authority. NMFS will continue working with RFMCs,
RFMOs, states, and other partners and constituents to address bycatch
and will renew and revise, as explained below, the agency's strategy to
combat bycatch both domestically and worldwide. Actions not subject to
the MSA RFMC process will be carried out directly by NMFS.
NMFS believes that appropriate avenues exist for fisheries
rulemaking to address bycatch through the deliberative, public RFMC or
Atlantic Highly Migratory Species Division process under the MSA, the
ASMFC and the ACFCMA, the Take Reduction Teams under the MMPA, the ESA,
and in support of the MBTA. NMFS believes that these processes and
authorities should continue to be used to address specific bycatch
problems rather than the petition process for comprehensive rulemaking.
In addition, there is much that we have been doing and plan to do to
address bycatch that is outside the purview of regulatory action, e.g.,
research for bycatch mitigation technology, international efforts, and
voluntary use of observers.
NMFS National Bycatch Strategy
NMFS published a comprehensive national bycatch plan in 1998
entitled Managing the Nation's Bycatch. This plan defines bycatch as
``Discarded catch of any living marine resource plus retained
incidental catch and unobserved mortality due to a direct encounter
with fishing gear.'' It is more inclusive than the definition of
bycatch in the MSA because: (1) the plan's definition includes living
marine resources other than ``fish'' as defined in the MSA (i.e., the
plan's definition includes marine mammals and seabirds); (2) the plan's
definition includes retained catch of non-target species, the MSA does
not; and (3) the plan's definition includes fishing mortality of living
marine resources that are not captured, but die after a direct
encounter with fishing gear, the MSA does not. The plan's definition is
also more inclusive than the definition of bycatch as used in the
petition which refers to ``the incidental catch of birds, mammals,
turtles, and fish.'' It is also important to note that the plan
addresses bycatch as occurring in recreational and subsistence
fisheries as well as commercial fishing operations.
The 1998 plan was developed over an 18-month period by a planning
team composed of fisheries managers and scientists from all of NMFS'
administrative regions. The public participated in the development of
this plan; NMFS carefully considered comments from 36 organizations or
individuals in response to a March 1997 notice of availability
published in the Federal Register. Seven national objectives are listed
in the plan as supporting achievement of NMFS' national bycatch goal
(i.e, ``to implement conservation and management measures for living
marine resources that will minimize, to the extent practicable, bycatch
and the mortality of bycatch that cannot be
[[Page 11517]]
avoided''), and these seven objectives are broken down into 22
individual strategies consisting of 69 individual, substantive
components. The plan also listed a series of regional recommendations.
NMFS has undertaken many activities in support of these objectives and
strategies, and continues to build on progress already made.
NMFS has determined, due to the continuing challenge of meeting the
NMFS national bycatch goal, that we will undertake a comprehensive
review of agency progress toward meeting the national bycatch goal, its
supporting objectives and strategies, and the regional recommendations.
This review will be part of the National Bycatch Strategy, which is
comprised of the following six components:
1. Assess progress toward meeting the national bycatch goal, its
supporting objectives and strategies, and regional recommendations (as
set forth in Managing the Nation's Bycatch), which includes meeting the
bycatch reduction requirements of relevant statutes, including national
standard 9 of the MSA, Section 118 of the MMPA, and the take
prohibitions of the ESA.
2. Develop a national approach to a standardized bycatch reporting
methodology.
3. Implement the national bycatch goal through regional
implementation plans.
4. Undertake education and outreach involving cooperative efforts,
at the regional level (and other levels as appropriate), by fishery
managers, scientists, fishermen, and other stakeholders to develop
effective and efficient methods for reducing bycatch.
5. Utilize existing partnerships and develop new international
approaches to reducing bycatch of living marine resources including
fish stocks, sea turtles, marine mammals, and migratory birds, where
appropriate.
6. Identify new funding requirements to effectively support the
NMFS National Bycatch Strategy on an ongoing basis.
The first component of the National Bycatch Strategy will involve a
headquarters-based team, along with an Atlantic HMS team and regional
teams consisting of representatives from NMFS regional offices and
science centers, in consultation with RFMCs, and will result in the
preparation of ``regional report cards'' by July 2003: (1) documenting
progress toward meeting the national goal, objectives, strategies, and
regional recommendations; (2) suggesting ways to enhance compliance
with existing bycatch mandates under the MSA (e.g., national standard
9) and Section 118 of the MMPA; (3) suggesting ways to enhance
compliance with the take prohibitions of the ESA and to reduce takes of
migratory birds; (4) recommending ways to strengthen the national
bycatch goal, objectives, strategies, and regional recommendations to
ensure adequate consideration of protected species and address any
deficiencies that are identified; (5) listing related bycatch
management gaps by priority of funding needs; and (6) recommending
updates to the goal, objectives, strategies, and regional
recommendations of the 1998 report, as appropriate.
The second component of the National Bycatch Strategy will be the
development of a national approach to standardized bycatch reporting
methodology for all U.S. commercial and recreational fisheries. The MSA
currently requires that this be specified on a fishery-by-fishery
basis, but fishery interactions and the deployment of observers and
other data collection systems across fisheries indicate the need for a
coordinated approach. A national in-house working group will be
convened to evaluate the current methodologies for estimating bycatch,
review the current use of self-reporting to estimate discards, evaluate
the potential for estimating discards by inferences drawn from fishery
independent surveys, recommend a statistical design for observer
programs to cover all U.S. fisheries, recommend standards of precision
to be achieved for discard estimates, and recommend observer sample
sizes and associated costs for all U.S. fisheries. The working group
will submit a final report to the Assistant Administrator for Fisheries
by June 2003.
The third component of the National Bycatch Strategy, based on the
assessment from the first and second components, will be the production
by regional teams of regional and Atlantic HMS implementation plans and
timelines that are developed in concert with national policy and
guidance on bycatch. These plans should reflect any updating of the
goal, objectives, and strategies of the 1998 report. The timing of the
actual implementation of these plans will vary, depending on rulemaking
schedules as well as resources, but will all be submitted to the
Assistant Administrator for Fisheries by September 2003. The plans will
include criteria for identifying ``vulnerability'' of discard species
to adverse impacts; application of those criteria to identify the most
serious discard problems; identification and evaluation of alternatives
for reducing the adverse impacts of discards (including at least the
reduction or elimination of overfishing target species, modification of
fishing gear and/or fishing practices, time and/or area restrictions on
fishing, and factors that determine the likelihood of success using
each of the alternatives); and strategies for solving the problems that
have been identified.
The fourth component of the National Bycatch Strategy will result,
by September 2003, in the creation of a plan for expanding education
and outreach activities involving the establishment of, coordination,
and communications among regional working groups that specialize in
fishery-specific bycatch issues. These regional groups may ultimately
include regional marine advisory officers and others who work closely
with fishermen. The purpose of these groups will be to formulate
fishery-specific, effective, and efficient methods for cooperatively
reducing bycatch. These methods could include incentive programs and/or
other programs to encourage fishermen to reduce bycatch and assist in
providing accurate estimates of bycatch. Incentives might include
allocations of fish or extended fishing times to fishermen who
voluntarily use specialized gear and fishing tactics to successfully
reduce bycatch. Education and outreach will be an element of every
regional plan developed in the third component. This effort will
include sponsorship of symposia (including a major international
bycatch symposium at the American Fishery Society's 2003 annual
meeting), workshops, and other bycatch education and outreach
activities. In addition, this effort will include updating and
enhancing the dedicated NMFS bycatch website (http://www.nmfs.noaa.gov/
bycatch.htm
) on a regular basis.
The fifth component of the National Bycatch Strategy will address
international approaches to reduce bycatch of living marine resources,
including fish stocks, sea turtles, marine mammals, and migratory birds
extending beyond U.S. waters. Existing international agreements will be
examined for potential broadening and for progress in implementation.
RFMOs and other fora will also be examined for effectiveness in
resolving regional bycatch problems and as alternative fora for
yielding more expedient results. NMFS will continue to report to
Congress annually with an assessment of the need for international
bycatch agreements, as required by section 202(h) of the MSA.
Continuing activities will include seeking bycatch assessment and
reduction on a bilateral basis and
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through regional fisheries management organizations.
The sixth component of the National Bycatch Strategy directs NMFS
headquarters staff to use gaps and funding needs identified by the
Atlantic HMS team and regional teams as part of the first component of
the National Bycatch Strategy, to use observer costs estimated by the
national working group under the second component of the National
Bycatch Strategy, as well as other sources, to identify new agency
funding requirements and make recommendations to modify NMFS's
comprehensive 5-year plan ``NOAA Fisheries' Requirements for Improved
and Integrated Conservation of Fisheries, Protected Resources, and
Habitat (Requirements Plan).'' As this National Bycatch Strategy
matures into a more robust strategy over coming months and years,
funding needs and priorities will be revisited. The attainment of
adequate funding is essential to the success of the National Bycatch
Strategy.
NMFS will continue to build upon its accomplishments and accelerate
its efforts in ensuring that renewed and revised objectives and
strategies, as well as regional recommendations, from the 1998 Managing
the Nation's Bycatch, the foundation for its National Bycatch Strategy,
are fully implemented. We discussed the petition and NMFS' efforts on
bycatch at the January 2003 meetings of the Marine Fisheries Advisory
Committee and the RFMC Chairs. NMFS will discuss our national strategy
with these and other fisheries groups and non-government organizations
and report progress on bycatch activities at periodic meetings and
through the NMFS bycatch website (http://www.nmfs.noaa.gov/
bycatch.htm
).
Dated: March 3, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 03-5638 Filed 3-6-03; 1:51 pm]
BILLING CODE 3510-22-S