Taking of Marine Mammals Incidental to Commercial Fishing Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 970129015-7220-05; I.D. 010397A]

RIN 0648-AI84

Taking of Marine Mammals Incidental to Commercial Fishing

Operations; Pacific Offshore Cetacean Take Reduction Plan Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to require new training, equipment,

and gear modifications for operators and vessels in the California/

Oregon drift gillnet fishery for thresher shark and swordfish to reduce

the level of mortality and serious injury of several marine mammal

stocks that occur incidental to fishing operations.

DATES: Effective October 30, 1997.

ADDRESSES: Copies of the final Pacific Offshore Cetacean Take Reduction

Plan and final Environmental Assessment (EA) prepared for the final

rule may be obtained by writing to Irma Lagomarsino, Southwest Region,

NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; or

Victoria Cornish, Office of Protected Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS, 562-980-4016;

or Victoria Cornish, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION: The California/Oregon drift gillnet (CA/OR

DGN) fishery which targets thresher shark and swordfish, is classified

as a Category I fishery under section 118 of the Marine Mammal

Protection Act (MMPA; 16 U.S.C. 1361 et seq.). A Category I fishery is

a fishery that has frequent incidental mortality and serious injury of

marine mammals. The majority of the fishing effort in the CA/OR DGN

fishery occurs within 200 miles (320 km) offshore of California and

Oregon. Under California state law, from May 1 through August 14, drift

gillnets may not be used to take swordfish or thresher shark in ocean

waters within 75 nautical miles of the California mainland coastline

(California Fish and Game Code, Sec. 8576). Swordfish may be taken

within 75 nautical miles of the California mainland from August 15 to

January 31; additional area restrictions also apply within this area.

From February through April, drift gillnets may not be used.

The CA/OR DGN fishery has a historical incidental bycatch of

several strategic marine mammal stocks including: Several beaked whale

species, short-finned pilot whales, pygmy sperm whales, sperm whales,

and humpback whales (Barlow et al., 1995). A strategic stock is a

stock: (1) For which the level of direct human-caused mortality exceeds

the potential biological removal (PBR) level; (2) that is declining and

is likely to be listed under the Endangered Species Act (ESA) in the

foreseeable future; or (3) that is listed as a threatened or endangered

species under the ESA.

Section 118 of the MMPA requires NMFS to develop and implement a

take reduction plan to assist in the recovery or to prevent the

depletion of each strategic stock that interacts with a Category I or

II fishery. The immediate goal of a take reduction plan is to reduce,

within 6 months of its implementation, the level of mortality and

serious injury of strategic stocks incidentally taken in the course of

commercial fishing operations to less than the PBR levels established

for such stocks. Since the CA/OR DGN fishery is a Category I fishery

that interacts with several strategic stocks, NMFS established the

Pacific Offshore Cetacean Take Reduction Team (PCTRT) on February 12,

1996 (61 FR 5385), to prepare a draft take reduction plan. The PCTRT

includes representatives of NMFS, the California Department of Fish and

Game (CDFG), the Pacific States Marine Fisheries Commission,

environmental organizations, academic and scientific organizations, and

participants in the CA/OR DGN fishery. In selecting these team members,

NMFS sought an equitable balance among representatives of resource user

and non-user interests.

The PCTRT was tasked with developing a consensus plan for reducing

the level of mortality and serious injury of strategic marine mammal

stocks incidental to the CA/OR DGN fishery. The PCTRT met five times

between February and June 1996 and submitted a consensus draft plan to

NMFS on August 15, 1996 (draft PCTRP, 1996). The draft PCTRP included:

(1) A review of the current information on the status of the affected

strategic marine mammal stocks; (2) a description of the CA/OR DGN

fishery; (3) an analysis of data from NMFS' CA/OR DGN fishery observer

program from 1990-1995; (4) primary strategies to reduce takes of

strategic marine mammal stocks; (5) contingency measures that would

reduce fishing effort; and (6) other recommendations regarding

voluntary measures to reduce takes, measures to enhance the

effectiveness of the observer program, research on oceanographic/

environmental variables, and other potential strategies considered and

rejected by the team. The PCTRT recommended that three of the four

primary strategies of the draft PCTRP (1996) be administered on a

mandatory basis (strategies #1, #2, and #4) and that one be

administered on a voluntary basis (strategy #3). NMFS reconvened the

PCTRT in May 1997 and it provided NMFS with additional comments and

recommendations on the proposed PCTRP and proposed rule to implement

the plan (see PCTRT Recommendations from the 1997 Meeting section).

Because the implementation of the PCTRP would result in the

regulation of the state-managed CA/OR DGN fishery, NMFS contacted both

CDFG and the Oregon Department of Fish and Wildlife (ODFW) on how best

to proceed with the Plan's implementation. CDFG and ODFW both deferred

to the Federal government to issue regulations under the authority of

the MMPA to implement the PCTRP. On February 14, 1997, NMFS proposed

regulations under the MMPA (62 FR 6931) to implement three of the

primary strategies recommended by the PCTRT (draft PCTRP, 1996). These

strategies include the establishment of a minimum depth-of-fishing

requirement (strategy #1), use of acoustic deterrent devices (pingers)

(strategy #2), and mandatory skipper workshops (strategy #4). NMFS also

proposed to implement primary strategy #3 on a voluntary basis, under

which NMFS would encourage CDFG not to reissue lapsed permits,

encourage ODFW to continue issuing not more than 10 permits per year

and explore the development of a permit buyback program for both CDFG

and ODFW permit holders. In the proposed rule, NMFS described how it

intended to implement the other sections of the draft PCTRP.

In addition to publication in the Federal Register, NMFS issued a

press release announcing the availability of the proposed rule and

summarizing the

[[Page 51806]]

major issues contained in the proposed rule. Information in the press

release was published in several California newspapers and broadcast on

at least one radio station. Voluntary Skipper Education Workshops were

held in several locations throughout California in June 1997, providing

an additional opportunity to inform participants in the fishery about

the proposed rule and PCTRP.

The final rule will govern fishing by all U.S. drift gillnet

vessels operating in waters seaward of the coast of California or

Oregon, including adjacent high seas waters. This final rule applies to

U.S. drift gillnet vessels originating from ports outside California or

Oregon (e.g., Alaska). NMFS has determined that implementation of this

final rule is expected to reduce, within 6 months of its

implementation, mortalities and serious injuries of all strategic

stocks that are taken by the CA/OR drift gillnet fishery to below the

PBR level for each stock.

Responses to Comments

NMFS received six written comments during the comment period for

the proposed rule. Comments were received from fishers, environmental

groups, the Pacific States Marine Fisheries Commission, and members of

the general public. Key issues and concerns are summarized and

responded to as follows:

Comments on the Depth of Fishing Requirement (Strategy #1)

In the proposed rule, NMFS proposed to establish a minimum depth-

of-fishing requirement that would prohibit the use of extenders that

are less than 36 ft (10.9 m). Extender lines (buoy lines) attach buoys

(floats) to a drift gillnet's floatline and determine the depth in the

water column at which the net is fished. Two commenters agreed with the

establishment of a minimum 36 ft (10.9 m) depth-of-fishing requirement

as a method to reduce incidental marine mammal mortality and serious

injury. Two commenters felt that there must be a mechanism to enforce

the extender provision. One commenter believed that since fishing at

depths that are greater than 36 ft (10.9 m) results in a lower catch of

target fish, vessel operators will fish shallower in the water when

observers are not on the vessel. Consequently, future observer data may

not be representative of the actual marine mammal take in the entire

fishery.

Response: On those boats that are carrying marine mammal observers

(e.g., expected to be approximately 20 percent of the fishing effort),

information will collected by observers on whether there is compliance

with the minimum depth-of-fishing requirement. However, NMFS agrees

that this may not be sufficient to ensure compliance. Therefore, NMFS

enforcement agents will conduct random checks and NMFS will work with

state agents to monitor compliance. In addition, since the cost of a

drift gillnet is approximately $10,000 and interactions with marine

mammals often results in net damage or net loss, vessel operators will

be motivated to make changes in their fishing gear or techniques to

avoid marine mammal entanglement, and subsequently, net damage or loss.

Furthermore, analysis of the best available data indicates that

swordfish and thresher shark are equally likely to be caught at depths

that are greater than 36 ft (10.9 m), even though drift gillnet fishers

sometimes fish at shallower depths (NMFS unpublished data). Combined

with other strategies, NMFS believes the minimum depth-of-fishing

requirement will significantly contribute to reductions in cetacean

bycatch, including strategic stocks in the CA/OR DGN fishery.

Comments on the Pinger Experiment and Requirement (Strategy #2)

Comment 1: One commenter agreed with NMFS that the preliminary

results from the 1996/1997 CA/OR DGN fishery pinger experiment supports

the use of pingers.

Response: NMFS agrees.

Comment 2: One commenter was concerned about the biological impact

of pingers on cetaceans and recommended that they should not be used

until scientific evidence shows that pingers are not harmful to any

strategic stock.

Response: NMFS prepared an Environmental Assessment (EA) on the use

of acoustic pingers to reduce marine mammal bycatch in commercial

fisheries (NMFS, 1997a). NMFS concluded that the sound intensity levels

of pingers will not cause physical injury or temporary threshold shifts

in marine mammals. Furthermore, due to the limited sound range of

pingers and the limited level of fishing effort in the CA/OR DGN

fishery, ensonifying major portions of the ocean will not occur. Thus,

the negative impact of pingers used by the CA/OR DGN fishery on marine

mammals is likely to be negligible. Nevertheless, monitoring programs

will evaluate changes in distribution to evaluate whether cetaceans are

avoiding important habitat. NMFS will continue to evaluate the status

of strategic marine mammal stocks that interact with the CA/OR DGN

fishery on an annual basis. NMFS made similar determinations regarding

the impact of pingers on marine mammals in the EA prepared for this

final rule (NMFS, 1997b).

Comment 3: One commenter believed that pinger noise during the

experiment may constitute ``harassment'' under the MMPA and ESA.

Response: Although scientific results clearly indicate that pingers

significantly reduced harbor porpoise bycatch in the New England sink

gillnet fishery (Reeves et al., 1996) and cetacean bycatch in the CA/OR

DGN fishery (see section on 1997 PCTRT Recommendations), scientists do

not know why they worked (NMFS, 1997a). Several mechanisms are

possible. For example, pingers may operate as acoustic alarms alerting

animals to the presence of fishing gear on the assumption they will

avoid the gear if made aware of its presence. Alternatively, the sounds

emitted by pingers may repel marine mammals away from the gear. Another

possibility is that the pingers disperse the prey upon which marine

mammals forage and thus, affect marine mammal behavior indirectly.

The state of knowledge about marine mammal hearing abilities and

behavior in response to various types of sound is limited (Reeves et

al., 1996). However, pingers were not originally designed to harass

marine mammals. Pingers produce relatively weak sound pulses of 132 dB

re 1 Pa at 1 m which attenuate to ambient noise levels at a distance of

only 300 m (984.3 ft) from the source (NMFS, 1997a). In contrast,

``acoustic harassment devices'' were specifically designed to emit much

louder acoustical pulses (e.g., 187-218 dB re 1 Pa at 1 m) strong

enough to keep pinnipeds away from nets and aquaculture facilities

(Richardson et al., 1995; NMFS, 1997a).

It is questionable if the operation of pingers would constitute an

``act of pursuit, torment or annoyance'' under the definition of

``harassment'' in section 3 of the MMPA. Furthermore, pingers have no

potential to injure a marine mammal. Regardless, even if the operation

of pingers does constitute ``harassment'' under the MMPA, section

101(a)(4) of the MMPA allows the use of certain measures by the owners

of fishing gear to deter marine mammals so long as such measures do not

result in the death or serious injury of a marine mammal. NMFS

recommends the use of pingers in the CA/OR DGN fishery as a specific

measure that may be used to nonlethally deter marine mammals. Likewise,

such takes are allowed under section 118 of the MMPA.

[[Page 51807]]

With respect to the ESA, there is no statutory definition for

``harassment'' and NMFS has not issued a regulatory definition for this

term. In interpreting this term, NMFS examined a variety of factors,

including the extent to which the activity disrupts normal behavioral

patterns and whether it is likely to produce harm or injury. NMFS has

concluded that there is no evidence available at this time that would

suggest the use of pingers to deter marine mammals from interacting

with fishing gear would constitute harassment under the ESA.

NMFS will continue to investigate the possible mechanisms of why

pingers reduce cetacean entanglement in the CA/OR DGN fishery. If NMFS

determines that the effect of sound emitted from pingers does

constitute ``harassment'', it will take appropriate action, which may

include action to modify the requirements for pinger use, to alter the

specifications for pingers or to ensure any necessary authorizations

are in place.

Comment 4: Two commenters cautioned that pingers may not be

effective at reducing cetacean bycatch in the CA/OR DGN fishery due to

the variety of cetaceans that are entangled.

Response: NMFS and the fishery conducted an experiment during the

1996/1997 fishing season in the CA/OR DGN fishery to test the efficacy

of pingers at reducing cetacean entanglement. Results from this study

indicate that the use of pingers is effective at significantly reducing

cetacean bycatch in the fishery (see 1997 PCTRT Recommendations

section). NMFS will continue to evaluate the long-term effectiveness of

pingers at reducing strategic stock bycatch in the CA/OR DGN fishery.

Comment 5: One commenter stated that the proposed rule failed to

explain clearly how NMFS would certify that pingers were NMFS approved

or enforce the pinger specifications (e.g., intensity, frequency,

etc.).

Response: NMFS agrees that the issue of pinger certification needs

to be clarified. In the proposed rule, NMFS stipulated that only

``NMFS-approved pingers'' could be used in the fishery and that if

requested, NMFS may authorize the use of non-NMFS-approved pingers for

limited experimental purposes. This final rule stipulates

specifications for pingers that are required to be used in the CA/OR

DGN fishery under section 229.31(c)(1). Since all pingers used in the

fishery must meet these specifications, all references to NMFS-approved

pingers have been removed from the final rule. NMFS is not requiring

manufacturers to have their pingers certified by an independent company

that their pingers meet the pinger specifications of the final rule;

independent companies are not necessarily more credible at testing the

sound characteristics of pingers than the manufacturer. However,

manufacturers of pingers will need to provide documentation that their

pingers meet the specifications of the final rule. NMFS will monitor,

periodically, whether the pingers used by the fishery meet the

specifications under section 229.31(c)(1) to ensure compliance with

this requirement. In the future, if experimental findings support the

use of a pinger with different specifications, NMFS would establish new

specifications by rulemaking, and also provide actual notice to drift

gillnet vessel operators.

Comment 6: One commenter suggested that in the final rule NMFS

publish: (1) The parameters of the drift gillnet pinger experiment; (2)

the basis for the pinger spacing requirements and; (3) a requirement

that all vessels carry four spare pingers. Furthermore, they

recommended that NMFS conduct additional research to determine whether

the spacing requirements for pingers are adequate.

Response: The experimental design for the 1996/1997 pinger

experiment in the CA/OR DGN fishery was based primarily on the

recommendations from the participants of an acoustic workshop (Reeves

et al., 1996). Based on these suggestions, the PCTRT drafted the pinger

experimental protocol, circulated it for peer review, and made the

appropriate changes to ensure that a scientifically credible experiment

would be conducted. The details of the experimental protocol can be

found in the draft PCTRP (1996) and is not repeated here.

The participants in the acoustic workshop (Reeves et al., 1996),

and the PCTRT, recommended that pingers be placed every 300 ft (91.44

m) on the leadline and floatline for experimental purposes in the CA/OR

DGN fishery. This interval was suggested because it had been effective

at reducing harbor porpoise bycatch in the New Hampshire sink gillnet

fishery. In addition, drift gillnets are often set with the floatline

above the ocean thermocline and with the leadline below it, especially

sets targeting swordfish. Since thermoclines act as barriers to sound

transmission, they also recommended that the pingers placed on both

lines be staggered such that the horizontal distance between a pinger

on the floatline and a pinger on the leadline is 150 ft (45.72 m). For

a typical 6000 ft (1828.80 m) net, 21 pingers on the floatline and 20

pingers on the leadline would be needed (41 total pingers). The final

rule requires this pinger configuration on the net. NMFS will continue

to evaluate the long-term efficacy of pingers at reducing cetacean

bycatch in the fishery and whether the spacing intervals require

modification.

NMFS does not agree that CA/OR DGN fishery vessel owners should be

required to maintain four pingers as spares, because the requirement

that all pingers remain functioning and operational at all times during

deployment provides adequate direction to vessel owners.

Comment 7: One commenter questioned the significance of the

preliminary results from the 1996/1997 pinger experiment in the CA/OR

DGN fishery because they believed the experiment was conducted only in

August and may not be representative of the entire fishing season.

Response: NMFS would like to clarify that the 1996/1997 pinger

experiment was conducted from September 1996-January 1997. Thus, the

results from the experiment are based on the months in which the

majority of fishing effort occurs.

Comment 8: One commenter was concerned with the possibility that

marine mammals may become habituated to the sound of pingers.

Response: At this time, it is not possible to determine whether

cetaceans will become habituated to the sounds emitted by pingers.

However, since the CA/OR DGN fishery operates offshore, over a broad

geographic area, and the sound range of pingers is limited, habituation

would be less likely in this fishery compared to nearshore fisheries

(NMFS 1997a). To the extent that pingers are thought to operate as an

alarm mechanism, increased exposure to pingers may increase their

effectiveness in reducing interactions depending on the learning

behavior of cetaceans. NMFS will continue to monitor the status of

cetaceans that interact with this fishery.

Comments on the Voluntary Program To Reduce the Number of Gillnet

Permits (Strategy #3)

Comment 1: Several commenters agreed that the CDFG should be

encouraged to deny reissuance of lapsed permits and that ODFW should be

encouraged not to issue more than the current level of unlimited

landings permits (strategy #3, part I). One commenter believed that

this strategy was not likely to result in decreases in marine mammal

mortality. One commenter supported the draft PCTRP's voluntary permit

``buy-back program'' to

[[Page 51808]]

reduce the number of drift gillnet permits (strategy #3, part II) as a

method of reducing marine mammal mortality.

Response: The PCTRT recognized that the California drift gillnet

fishery is not restricted from an expansion in fishing effort because a

portion of CDFG drift gillnet permittees make only the minimum landings

to keep valid permits. If these permit holders began fishing well

beyond these minimum requirements, marine mammal entanglements likely

would increase. To limit this potential expansion of fishing effort,

the PCTRT recommended two approaches that would reduce the number of

drift gillnet permits under strategy #3. First, information provided to

the PCTRT indicated that currently CDFG does not reissue lapsed drift

gillnet permits. For these reasons, the PCTRT recommended that CDFG be

encouraged to continue not to reissue drift gillnet permits that have

lapsed and that ODFW be encouraged to continue to issue not more than

10 unlimited landing permits. Second, the PCTRT recommended that the

development of a permit buy-back program be explored. A buy-back

program would focus on those fishers that hold drift gillnet permits

from the State of California and who only fulfill the minimum

requirements to maintain their permits.

Implementation of the recommendations to CDFG would affect only

those permit holders who allow their CDFG drift gillnet permits to

lapse. Implementation of the buyback program would only affect drift

gillnet permit holders who were interested in being financially

compensated for allowing their permits to lapse. Strategy #3 would not

affect those drift gillnet fishers that annually maintain valid CDFG

drift gillnet permits or who did not want to voluntarily participate in

the buy-back program. This strategy is not a measure to put a ``cap on

total fishing effort'' in the CA/OR DGN fishery (i.e., establish a

maximum threshold on the number of sets each year). Implementation of

strategy #3 is not likely to significantly decrease the current level

of incidental marine mammal mortality by the fishery in the short-term,

but is designed to limit the potential expansion of fishing effort and

associated marine mammal mortality in the long-term.

As recommended by the Team, NMFS contacted both CDFG and ODFW

regarding implementation of Strategy #3 of the Plan. Specifically, NMFS

encouraged CDFG to continue its current practice of not reissuing

lapsed drift gillnet permits and inquired whether CDFG was interested

in participating in a permit buy-back program. CDFG agreed to continue

implementing its current practice of not reissuing lapsed drift gillnet

permits.

At this time, CDFG is unable to participate in any permit buy-back

program. Although NMFS does not have funding to implement a permit buy-

back program, section 118(j) of the MMPA allows NMFS to accept,

solicit, receive, hold, administer and use gifts, devises and bequests

to carry out the provisions of section 118, which includes the

implementation of take reduction plans. NMFS will continue to explore

the development of a buy-back program.

NMFS also contacted ODFW and encouraged the agency to continue to

issue no more than 10 unlimited-landings drift gillnet landings

permits. ODFW stated that it did not plan on asking the Oregon Fish and

Wildlife Commission to increase the maximum number of landings permits.

ODFW also stated that all vessels holding Oregon gillnet permits in

1997 are vessels that currently participate in the California DGN

fishery.

Comment 2: One commenter agreed with the implementation of the buy-

back program, although they recommended it should be coupled with other

economic incentive programs (e.g., raising state landing taxes).

Response: The PCTRT considered increasing fees in the fishery.

However, the PCTRT rejected this method as a primary strategy at this

time, because it would require a change in California law, would be a

financial hardship to some fishers, and may not necessarily reduce

current fishing effort.

Comments on the Skipper Education Workshops (Strategy #4)

Comment: Several commenters agreed that mandatory education during

Skipper Education Workshops would help facilitate the implementation of

the PCTRP. One commenter suggested that NMFS issue documentation to

vessel operators that attend workshops to verify their participation

and require that this documentation be onboard their vessel when they

are participating in the CA/OR DGN fishery.

Response: Documentation of workshop attendance does not need to be

kept on vessels because NMFS will maintain a database of all skippers

who participate in the workshops to verify workshop attendance by

individual vessel operators. This database will be used for enforcement

of the Skipper Education Workshop provision.

Comments on Contingency Measures Involving a Reduction in Fishing

Effort

Comment: One commenter was concerned that the language used in the

proposed rule describing the PCTRT's recommendations regarding

``contingency measures involving a reduction in fishing effort'' was

not consistent with the draft PCTRP submitted by the team.

Response: NMFS agrees that inappropriate language regarding

``contingency measures'' was used in the proposed rule. The draft PCTRP

included an evaluation of several measures to reduce fishing effort in

the CA/OR DGN fishery as a potential method of reducing the incidental

taking of strategic marine mammal stocks (section IV; draft PCTRP,

1996). Although none of the primary strategies included measures to

reduce fishing effort, the team agreed to the following:

If at the time the Take Reduction Team reconvenes, the TRP

objectives have not been met, the TRT will evaluate and recommend

methods to reduce fishing effort in the upcoming fishing season,

unless there are other applicable measures which could reasonably be

expected to reduce take levels to below PBR in the upcoming fishing

season.

The PCTRT also recommended that NMFS reconvene the team every year

prior to June 15 to monitor the implementation of the final PCTRP,

until such time that NMFS determines that the objectives of the MMPA

have been met.

NMFS reconvened the PCTRT May 29-30, 1997 (PCTRT, 1997), and

intends to continue to reconvene the PCTRT on an annual basis (prior to

June 15) until the long-term take reduction goals of the MMPA have been

reached by the CA/OR DGN fishery. NMFS did not intend to propose any

changes to the PCTRT's original recommendations regarding contingency

measures in the proposed rule. NMFS concurs with the PCTRT's original

recommendation that the objectives of these meetings are to review the

best available information on the status of strategic stocks, the

latest PBR and take estimates for marine mammals incidentally taken in

the fishery, and the efficacy of measures implemented to reduce the

incidental taking of these stocks. Furthermore, NMFS agrees that if at

the time the team reconvenes, after the final plan has been adopted by

NMFS, the goals of the MMPA have not been met, the TRT will evaluate

and recommend methods to reduce fishing effort in the upcoming fishing

season, unless there are other applicable measures which could

reasonably be expected to reduce take levels to below PBR in the

upcoming fishing season.

[[Page 51809]]

General Comments on the Proposed Rule

Comment 1: One commenter suggested that a reduction of marine

mammal mortality of 50 percent could be achieved if the length of the

net was reduced by 50 percent.

Response: NMFS agrees that reducing the size of the net could

potentially decrease the number of marine mammals captured per set.

However, it would also decrease the number of target species captured

per set. Since this would encourage inefficient fishing, some fishers

may compensate for the reduced catch rate by increasing the number of

sets over the season. Thus, overall incidental marine mammal take may

not change. Furthermore, although the TRT discussed several measures

that would decrease fishing effort, including reducing net size, it did

not recommend their implementation at this time.

Comment 2: One commenter recommended that a program be created to

rescue whales caught in drift gillnets.

Response: Although similar programs have been developed on the east

coast to disentangle large whales caught in fishing gear, only a small

portion of the cetaceans caught in the CA/OR DGN fishery are alive when

the net is pulled from the water. In addition, the fishery operates

primarily offshore in locations where rescues would be infeasible.

Comment 3: One commenter cautioned that the implementation of the

PCTRP is not likely to achieve the Zero Mortality Rate Goal (ZMRG) in 5

years.

Response: Section 118(f)(2) of the MMPA establishes ZMRG as a long-

term goal of take reduction plans, taking into account the economics of

the fishery, the availability of existing technology, and existing

State or regional fishery management plans. NMFS has concluded that the

primary strategies recommended by the PCTRT represent substantial

progress toward achieving the ZMRG. Nonetheless, NMFS also recognizes

that these strategies, by themselves, may not be sufficient to

guarantee this goal will be achieved. For this reason, NMFS will

reconvene the team at least once a year to monitor the implementation

of the final TRP, and, if necessary, recommend measures for the fishery

to achieve its ZMRG within the time period specified in the MMPA.

Comment 4: One commenter suggested that the proposed rule

contradicted the draft PCTRP recommendation to encourage vessel owners

to convert their nets to a mesh size of 20 inches during the Skipper

Education Workshops, but not to convert their mesh to a twine size of

#27.

Response: The PCTRT evaluated the relationship between mesh size

and cetacean bycatch. Their analysis found that mesh size was not

significantly related to entanglement of cetaceans although there was a

trend towards greater mesh sizes entangling more cetaceans. The

biological reasons for this trend are unknown. Nevertheless, the PCTRT

recommended that all vessels in the CA/OR DGN fishery voluntarily

convert to 20-inch (50.8 cm) net mesh size when replacing old nets or

large panels of existing net and that information be collected to

further evaluate the efficacy of using 20-inch (50.8 cm) mesh as a

method for reducing cetacean bycatch (draft PCTRP, 1996). NMFS will

encourage vessel operators to voluntarily convert to 20-inch mesh (50.8

cm) during its Skipper Education Workshops. If in the future more of

the fleet uses this mesh size, the relationship between mesh size and

cetacean bycatch may be better understood.

No significant correlations were found between specific twine sizes

and higher cetacean entanglement (draft PCTRP, 1996). The PCTRT did not

recommend that NMFS encourage vessel owners to convert their nets to a

different twine size. However, NMFS will continue to evaluate the

relationship of twine size and cetacean bycatch in order to evaluate

twine size as a potential strategy to reduce cetacean bycatch.

Comment 5: One commenter recommended that NMFS undertake the

necessary research to determine whether adjusting the percentage of

slack in the net may reduce cetacean bycatch.

Response: The PCTRT evaluated the relationship between the

percentage of slack in the net and cetacean bycatch. Because the PCTRT

found only a borderline significance for the slack percentages of 30-40

and 45-60, the PCTRT did not recommend requiring specific net slacks as

a primary strategy in the draft PCTRP. NMFS agrees with this

recommendation and therefore, has not included it as a requirement in

the final rule. However, NMFS will refine the collection of data on net

slack in order to evaluate the utility of percent of net slack as a

strategy to reduce cetacean bycatch.

Comment 6: One commenter stated that if the incidental take of

marine mammals is reduced to zero, there would be no need to reduce

fleet expansion.

Response: Theoretically, if marine mammal mortality and serious

injury incidental to operations of the CA/OR DGN fishery is reduced to

zero, there would be no need to limit the expansion of effort in the

fishery unless that expansion precluded the fishery from achieving its

take reduction goals under the MMPA. Nevertheless, the likelihood that

marine mammal bycatch will be reduced to absolute zero is low. Thus,

since fishing effort and marine mammal bycatch are significantly

correlated, substantial increases in fishing effort would likely

require additional take reduction strategies in order for the fishery

to meet its take reduction goals under the MMPA.

Comment 7: One commenter recommended increasing the closed season

and/or banning the use of drift gillnets in California.

Response: The PCTRT explored several measures to reduce fishing

effort in the fishery, and associated marine mammal entanglement.

However, at this time, the PCTRT and NMFS expect that the short-term

goals of the MMPA can be met without reducing fishing effort,

increasing the closed season, or banning the use of drift gillnets off

California.

Comment 8: One commenter noted that there is a discrepancy between

numbers used to refer to each primary strategy (e.g., strategy #1, #2,

etc.) in the proposed rule and the draft PCTRP (1996).

Response: NMFS agrees and has changed the final rule's references

to the plan strategies to be consistent with each strategy of the plan.

Comment 9: One commenter concluded that the draft PCTRP was

inadequate to reduce marine mammal mortality in the CA/OR DGN fishery

and urged NMFS to modify the plan to meet the requirements of the MMPA.

Response: NMFS disagrees. The PCTRT and NMFS expects the

implementation of the PCTRP will achieve the short-term goals of the

MMPA. NMFS will continue to review and evaluate the effectiveness of

measures implemented under the plan to reduce cetacean entanglement.

Furthermore, the Pacific Scientific Review Group recommended that ``* *

* extreme management measures that may severely restrict or impact

California driftnet fishing activities be postponed until analyses of

data from pinger experiments and from current ship surveys for cetacean

abundance are completed * * *'' (PSRG, 1997). Moreover, in addition to

the four primary strategies recommended by the PCTRT, they also

identified an additional 13 strategies that might reduce bycatch of

strategic marine mammal stocks (draft PCTRP, 1996). These strategies

were either rejected by the PCTRT or held in reserve for future

[[Page 51810]]

consideration. If the goals of section 118(f) of the MMPA have not been

met once the final PCTRP has been implemented, these strategies may be

reconsidered by the PCTRT and NMFS. NMFS will reconvene the team

annually to monitor the implementation of the final plan and provide

NMFS with recommendations as to whether additional measures are

necessary to achieve the short-term and long-term goals of the MMPA.

1997 PCTRT Recommendations

On May 29-30, 1997, NMFS reconvened the PCTRT to review the final

results from the 1996/1997 CA/OR DGN pinger experiment and evaluate the

need for effort reduction and potential implementation mechanisms as

recommended by the Team in the draft PCTRP (draft PCTRP, 1996). The

Team also reviewed at the meeting the status of the implementation of

the final Plan and final Rule to implement the Plan, Skipper Education

Workshops, and the drift gillnet observer program. On July 18, 1997,

the Team submitted to NMFS the following recommendations regarding the

proposed plan and rule (PCTRT, 1997).

Depth of Fishing Requirement (Strategy #1)

In August 1996, the PCTRT recommended that NMFS establish a

fleetwide 6-fathom minimum extender line (buoy line) requirement. At

the May 1997 PCTRT meeting, the team concurred with NMFS's proposed

rule requiring the use of extenders that are equal to or greater than 6

fathoms for all vessels in the CA/OR DGN fishery. This final rule

prohibits the use of extenders that are less than 6 fathoms (36 ft;

10.9 m).

Pinger Experiment and Requirement (Strategy #2)

In August 1996, the PCTRT recommended that NMFS and the CA/OR DGN

fishery initiate a pinger experiment during the 1996-1997 fishing

season to evaluate the effectiveness of pingers at reducing incidental

cetacean and strategic stock bycatch (Strategy #2; draft PCTRP, 1996).

Moreover, the PCTRT recommended that if results from this experiment

indicate that there is a downward trend in overall cetacean bycatch,

NMFS should establish a mandatory fleetwide pinger requirement for all

CA/OR DGN fishery vessels prior to the next fishing season (1997-1998)

and continue to monitor the effectiveness of pingers at reducing

bycatch.

Between September 1996 and January 1997, NMFS and the fishery

implemented a single-blind experiment through NMFS' Drift Gillnet

Observer Program as recommended by the PCTRT (draft PCTRP, 1996). This

experiment used pingers with the same sound characteristics as the

pingers used in the New England sink gillnet fishery experiment (e.g.,

broadband signal centered on 10 kHz with a source level of 132 dB re 1

Pa at 1 m) (PCTRP, 1996; NMFS, 1997a). Because preliminary results from

this experiment indicated that the observed cetacean entanglement rate

was almost four times greater for non-pinger sets than for those sets

that used pingers, NMFS proposed that pingers be mandatory in its

proposed rule to implement the PCTRP. However, NMFS stipulated that if

final results from the experiment indicated that pingers were

ineffective at reducing cetacean bycatch, the use of pingers would not

be included in the final rule. NMFS also proposed to reconvene the

PCTRT prior to publishing a final rule requiring the mandatory use of

pingers in the CA/OR DGN fishery to solicit its input on whether

pingers should be mandatory.

Preliminary final results from the pinger experiment indicate that

cetacean entanglement and pinger use is statistically dependent (Chi-

square test, p=0.006)(NMFS, unpublished data). Out of 420 observed sets

during the pinger experiment, 25 sets were observed with cetacean

entanglement; 4 of these sets had pingers and 21 did not have pingers.

The odds of entanglement decrease from 0.099/set without pingers to

0.022/set with pingers or a decrease of over 75 percent.

Based on the dramatic results from the 1996/1997 pinger experiment,

the Team recommended by consensus during its May 1997 meeting that the

use of pingers be mandatory for all vessels in the CA/OR DGN fishery

beginning in the 1997/1998 fishing season. Nevertheless, the team

expressed concern about whether a sufficient supply of NMFS-approved

pingers would be available at the start of the swordfish fishing season

(August 15). At this time, NMFS is aware of only one manufacturer that

produces a pinger consistent with the specifications in the final rule.

This manufacturer is currently producing these pingers and they should

be available by the effective date of this rule. In addition,

information on the distribution of fishing effort in the CA/OR DGN

fishery over the last few years indicates that the peak of fishing

effort occurs after September 30 each year (CDFG unpublished data).

Because cetacean entanglement is significantly correlated with fishing

effort, the highest levels of incidental entanglement also occurs after

September 30 (PCTRP, 1996). However, NMFS recognizes that vessel

operators require sufficient notice to purchase pingers in advance of

the date that pingers are required to be deployed. For these reasons,

the pinger requirements described under section 229.31(c) will be

effective for the 1997/1998 fishing season on October 30, 1997. During

subsequent seasons (e.g., 1998/1999), pinger requirements will be

mandatory during the entire fishing season.

Although the Team concurred with the pinger specifications and

configurations in the proposed rule, they suggested that the final rule

include a mechanism to allow for limited experimentation with

alternative pinger specifications and configurations in the fishery.

The Team recommended that any pinger experiment undergo peer review and

the experiment should not detract from the NMFS's CA/OR DGN fishery

observer program or the fishery's requirements to meet bycatch

reduction goals of the MMPA. The Team also suggested that new

manufactures of pingers have their pinger ``certified'' by an

independent company that they meet NMFS' pinger specifications.

Under this final rule, pingers must be used on all vessels, during

every set, and during the entire fishing season. A pinger is an

acoustic deterrent device which, when immersed in water, broadcasts a

sound frequency range of approximately 10 kHz at 132 dB re 1

micropascal at 1 m with a pulse duration of 300 milliseconds and a

pulse rate of 4 seconds. This rule also allows for limited

experimentation in the fishery to test the effectiveness of pingers

with alternative specifications and alternative pinger configurations

on the net. Experimental protocols will undergo peer review to ensure

scientific credibility. If better information on the hearing

sensitivity of cetaceans incidentally taken in the CA/OR DGN fishery or

if experimental results indicate that different pinger specifications/

configurations would be more effective at reducing cetacean bycatch,

NMFS may require that different pingers be used in the fishery. At that

time, NMFS would publish proposed pinger specifications and/or pinger

configurations and provide opportunity for public comment. For the

reasons described previously (see Responses to Comments section), the

final rule does not require new manufactures of pingers to be

``certified'' by an independent company

[[Page 51811]]

that their pingers meet the NMFS specifications under section

229.31(c)(1).

In order to better enforce the pinger requirement, the PCTRT

recommended that NMFS require any driftnet vessel with swordfish or

shark onboard to have pingers. Although NMFS agrees that drift gillnet

vessels that are at sea should be required to have pingers onboard, it

believes that pingers should be on the drift gillnet vessel at all

times, even when no shark or swordfish are on the boat. Regardless of

whether drift gillnet sets catch swordfish or shark, these sets may

still incidentally entangle cetaceans. For these reasons, the final

rule stipulates that anytime a CA/OR DGN fishery vessel is at sea with

a multifilament drift gillnet onboard, the vessel must carry a

sufficient number of pingers to meet the configuration requirements set

forth under section 229.31(c)(3).

Voluntary Program To Reduce the Number of Gillnet Permits (Strategy

#3)

In August 1996, the PCTRT recommended two approaches for limiting

the potential expansion of fishing effort by permit holders in

California and Oregon (Strategy #3, draft PCTRP 1996). At its May 1997

meeting, the Team continued to support its original recommendation

under Strategy #3, but recommended that the language in the preamble be

more consistent with the draft Plan. For example, in the preamble to

the proposed rule NMFS states that it would encourage ODFW to continue

issuing the same number of permits as were issued in 1996. However, the

draft plan states that ODFW should be encouraged to issue a ``maximum

of 10 permits each year.'' NMFS agrees and further clarifies that it

was the intent of this recommendation that ODFW issue no more than 10

permits each year. Furthermore, the preamble states that nearly a third

of the drift gillnet permittees annually satisfy only the minimum CDFG

requirements to keep their permits valid. The Team wanted NMFS to

clarify that the draft Plan states that almost a third of CDFG

permittees are relatively inactive, fishing on an extremely limited

basis and only, apparently, to maintain their CDFG drift gillnet

permit. NMFS concurs.

Skipper Education Workshops (Strategy #4)

In August 1996, the PCTRT recommended that NMFS conduct mandatory

skipper workshops on the components of the PCTRP, together with expert

skipper panels, to further generate and consider potential, additional

take reduction strategies (draft PCTRP, 1996). At its May 1997 meeting,

the team concurred with the proposed rule's requirement that all vessel

operators be required to attend a skipper workshop before initiating

fishing each fishing season. However, to facilitate maximum compliance

with the requirement during 1997, they recommended the language in the

final rule indicate that for the 1997/1998 fishing season, skippers

must have attended a workshop after the date of the last workshop to be

offered this season (e.g., September 1997) before they continue fishing

in 1997/1998. The language on subsequent year workshop requirements

should remain as stated in the proposed rule. The Team included

additional recommendations on the content of the workshops and

recommended that NMFS not issue ``certificates of attendance'' to

skippers that attend workshops, rather enforcement of the requirement

should be conducted with workshop rosters.

As recommended by the Team, NMFS conducted five skipper education

workshops during June 3-10, 1997, in the following California

locations: La Jolla, Long Beach, Morro Bay, Monterey, and Santa Rosa.

Eighty-five fishers attended these voluntary workshops at no cost to

the fishers. At the workshops, a presentation on the development and

status of the PCTRP was provided. A demonstration on pingers was

presented at the meeting along with a question/answer period. During

the second part of the workshop, current fishing strategies employed by

fishers to avoid marine mammal entanglement were discussed. This

information will be provided to the Team at its next meeting as

background for preparing additional take reduction strategies, if

necessary. Workshop participants were also provided with a

comprehensive guide to the identification of marine mammals to provide

fishers with more information on the biology and behavior of marine

mammals to assist their efforts in reducing bycatch. These guides will

also improve the accuracy of species identification indicated on the

mortality/serious injury reports fishers must submit to NMFS under its

Marine Mammal Authorization Program (MMAP). NMFS expects to hold two

additional workshops in September 1997 in Long Beach, CA, and Portland,

OR. Vessel operators who attended June 1997 Skipper Education Workshops

will not be required to attend an additional workshop before the 1997/

1998 fishing season.

After notification by NMFS, this final rule requires all CA/OR DGN

vessel operators to have attended one Skipper Education Workshop after

all workshops have been convened by NMFS in September 1997. CA/OR DGN

vessel operators are required to attend Skipper Education Workshops at

annual intervals thereafter, unless that requirement is waived by NMFS.

NMFS will provide sufficient advance notice to vessel operators by mail

prior to convening workshops.

Contingency Measures Involving a Reduction in Fishing Effort

The PCTRT strongly encouraged NMFS to modify the language in the

preamble to make it consistent with the language in the draft Plan.

NMFS agrees (see Responses to Comments section).

Other Team Recommendations

Mesh Size

Although no significant statistical correlation with cetacean

entanglement was found, the PCTRT continues to support its

recommendation that vessel owners should be encouraged to convert to 20

inch (50.8 cm) mesh when replacing old nets or panels, since the

results indicate a trend in reduction of marine mammal bycatch. The

PCTRT will continue to examine observer data to better understand the

relationship between mesh size, inter-related net characteristics

(e.g., twine size), and cetacean entanglement. NMFS agrees and

recommended that fishers convert to 20 inch (50.8 cm) mesh when

replacing nets or panels during NMFS'' June 1997 Skipper Education

Workshops and will suggest the conversion during future workshops.

Observer Program

In August 1996, the PCTRT recommended several measures to enhance

the effectiveness of NMFS'' observer program, including: (1) Achieving

20 percent observer coverage; (2) ensuring that the observer program is

targeting all possible DGN vessels, including vessels that cannot carry

an observer; and (3) ensuring that the observer program data collection

be expanded to include several additional data variables (i.e., net and

environmental characteristics) (draft PCTRP, 1996). At its May 1997

meeting, the PCTRT continued to express concerns regarding the level of

observer coverage and strongly recommended that NMFS achieve 20 percent

observer coverage. The PCTRT emphasized that the observer program

should re-evaluate its determinations of whether a vessel is

``unobservable'' and should make an effort to observe the smaller boats

that cannot accommodate an observer (via independent observation

platforms).

[[Page 51812]]

NMFS should cross-reference CDFG permittee lists with MMAP information

to ensure that all fishers who participate in the fishery are included

in the program. The PCTRT also recommended that NMFS develop a

reporting mechanism on observer data forms for expediting the

enforcement of the requirements of the final rule because failure to

comply with take reduction strategies could jeopardize the effort to

reduce cetacean entanglement. All elements in the draft Plan regarding

observer reporting forms should be included in the observer reporting

forms for the next fishing season (1997/1998) and beyond (e.g., surface

water temperature and cloud cover). The Team recommended that observers

periodically check to determine if pingers are functioning.

Since NMFS received the draft PCTRP (1996) in August 1996, it has

implemented several of the suggestions from the PCTRT regarding the

observer program. For example, the Southwest Region, NMFS, has

reevaluated its previous determinations as to whether vessels are

unobservable and has reviewed the CDFG permittee list. The Southwest

Region has also incorporated the PCTRT's recommended changes to the

observer data forms and observers will check whether pingers on

observed sets are functioning. Furthermore, the goal of the CA/OR DGN

fishery observer program is to observe 20 percent of the annual fishing

effort and the program will continue to strive to achieve this coverage

within the constraints of available funding. At this time, NMFS does

not have the funding to operate an independent observer platform.

1998 Team Meeting

The Team recommended that NMFS reconvene the Team in March 1998,

preferably after the meeting of the Pacific Scientific Review Group.

This would allow the PCTRT sufficient opportunity to review key

information on the status of strategic stocks and integrate this

information into its ongoing evaluation of the efficacy of Plan

strategies. NMFS agrees and intends to reconvene the PCTRT in March

1998 to monitor the implementation of the final PCTRP.

Other Comments

NMFS received information after the close of the proposed rule's

comment period, during the Skipper Education Workshops in June 1997,

that suggested that a small portion of the CA/OR DGN fleet (e.g.,

approximately 10 vessels) uses fishing strategies or gear that may not

require pingers to be placed on both the floatlines and leadlines.

Specifically, this sector of the fleet: (1) Targets only thresher

shark; (2) fishes in shallow water near the coast (e.g., 3-40 miles

(4.83-64.36 km) from shore); (3) uses a smaller net (e.g., 600 fathoms

(3600 ft or 1097 m) long, 45-80 meshes deep); (4) does not fish on a

thermocline; (5) uses smaller boats (e.g., 30-40 ft (9.12-12.19 m)

long); and (6) makes short trips (1-2 days). As a result, the commenter

believes that they should be reclassified as a different fishery or

only be required to place pingers on the floatline.

Under section 118 of the MMPA, NMFS is required to reexamine, and

after notice and opportunity for public comment, the classification of

commercial fisheries on at least an annual basis. On May 27, 1997, NMFS

published a proposed List of Fisheries for 1998 (62 FR 28657) and

expects the final List of Fisheries to be published within a few

months. NMFS will reexamine the categorization and definition of the

CA/OR DGN fishery in 1998 when it annually reexamines its

classification of fisheries. Furthermore, NMFS will request that the

PCTRT at its next meeting evaluate whether certain vessels targeting

only thresher shark should be classified as another fishery and/or have

different requirements under the PCTRP (March 1998). At this time, NMFS

is not modifying its final rule to establish separate requirements for

vessels targeting thresher shark. NMFS' Changes to the Draft Plan, 1997

PCTRT Recommendations, and Changes to the Proposed Rule to Implement

the Plan.

NMFS adopts the draft plan as submitted by the PCTRT (PCTRP, 1996)

and recommendations from the 1997 PCTRT meeting (PCTRT, 1997), except

for the following minor changes. NMFS has determined that

implementation of the take reduction plan, as modified, and

implementation of this final rule is expected to reduce, within 6

months of its implementation, mortalities and serious injuries of all

strategic stocks that are taken by the CA/OR drift gillnet fishery to

below the PBR level for each stock.

The PCTRT recommended that if the results from a pinger experiment

indicate pingers are effective at reducing cetacean bycatch, then the

use of pingers should be mandatory. In contrast, before final results

from the 1996/1997 pinger experiment in the CA/OR DGN fishery were

available, NMFS proposed the mandatory use of pingers in the proposed

rule to implement the PCTRP. This final rule requires the use of

pingers in the fishery.

The PCTRT recommended during its 1997 meeting that NMFS require any

driftnet vessel with swordfish or shark on board to have pingers. Under

the proposed rule and this final rule, pingers are required to be on

the vessel at all times when the vessel is at sea, even when no shark

or swordfish are on the boat.

The team recommended that pingers be required in the fishery by

August 15, 1997. The proposed rule did not specify a certain date that

pingers would be required. The final rule requires the use of pingers

by vessels in the CA/OR DGN fishery to be effective for the 1997/1998

fishing season 30 days after filing of this final rule for public

inspection at the Office of the Federal Register. During subsequent

seasons (e.g., 1998/1999), pinger requirements will be mandatory during

the entire fishing season.

The draft PCTRP (1996) and proposed rule stipulated that pingers

must be attached on both the floatline and leadline and spaced no more

than 300 ft (91.44 m) apart, in order to insure that the pingers were

broadcasting sound over the entire area of the net. During the pinger

experiment, pingers were attached to the floatlines and leadlines with

approximately 1 and 6 ft (0.30 and 1.82 m) lanyards, respectively.

Results from this experiment indicate that attaching pingers directly

to buoy lines (i.e., extenders) may be a more efficient attachment

method because it would facilitate pinger attachment. Pingers attached

in this manner would not require individual attachment and removal to

and from the floatline during each set, because this would

automatically occur during routine extender attachment/removal. For

example, if extenders were attached to the net at 100 ft (30.48 m)

intervals, one pinger could be attached to every third extender and the

300 ft (91.44 m) spacing requirement would be maintained. For these

reasons, the final rule authorizes the placement of pingers on

extenders as long as the 300 ft (91.44 m) spacing requirement is

maintained near the floatline and pingers are no more than 3 ft above

the floatline. In addition, this final rule authorizes pingers to be

attached to the leadline with lanyards that are up to 6 ft (1.83 m) in

length.

Deployment of pingers during the 1996/1997 pinger experiment

demonstrated that pinger performance is dependent on following

manufacturer's operating instructions and minimizing exposure of

battery packs to saltwater. For example, during the first few weeks of

the pinger experiment, silicon grease was not applied to O-rings prior

to pinger placement which resulted in a limited number of pingers

leaking and becoming nonfunctional. Also, because

[[Page 51813]]

the pingers used in the experiment were not designed with on/off

switches, the experimental protocol included the removal of battery

packs after each set to preserve battery life. This procedure greatly

increased the probability that the pinger battery packs would be

exposed to saltwater and malfunction. However, NMFS found that battery

life is much longer than originally estimated and does not foresee the

need to remove the batteries after every set. Reducing battery exposure

to saltwater will substantially decrease pinger malfunction. For these

reasons, NMFS recommends that if drift gillnet fishers use pingers that

do not have on/off switches, fishers follow manufacturer's deployment

instructions closely and minimizing the frequency of battery pack

removal (i.e., just keep them pinging for the entire trip) to reduce

its potential exposure to seawater and possible pinger malfunction.

The PCTRT recommended during its 1997 meeting that NMFS require any

manufacturer of pingers to provide independent certification that a new

prototype meets the specifications under Sec. 229.31(c)(1). The PCTRT

made this recommendation because it thought the definition of the term

``NMFS-approved pinger'' was unclear in the proposed rule. Although the

proposed rule described the sound specifications for pingers, NMFS

agrees that the term ``NMFS-approved'' was unclear. Nevertheless, NMFS

does not agree that manufacturers should be required to have an

``independent company'' certify that new prototype pingers meet the

pinger specifications under Sec. 229.31(c)(1); most manufacturers have

the equipment and expertise to test pinger sound characteristics. Of

course, manufactures of new pinger prototypes will need to provide

documentation that their pingers meet the specifications of the final

rule. For these reasons, any reference to the term ``NMFS-approved''

has been removed from the final rule; in addition, the final rule does

not require that manufacturers of new prototype pingers have an

``independent company'' certify that their pingers meet the

specification under Sec. 229.31(c)(1).

Classification

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule will not have a

significant economic impact on a substantial number of small entities.

No comments were received during the public comment period regarding

this certification. As a result, no final regulatory flexibility

analysis has been prepared.

The Assistant Administrator for Fisheries, NOAA (AA) has

determined, based on an EA prepared under the National Environmental

Policy Act, that implementation of these regulations would not have a

significant impact on the human environment. As a result of this

determination, an environmental impact statement is not required. A

copy of the EA prepared for this rule is available upon request (see

ADDRESSES).

This rule has been determined to not be significant for purposes of

E.O. 12866.

References

Barlow, J., R.L. Brownell Jr., D.P. DeMaster, K.A. Forney, M.S.

Lowry, S. Osmek, T.J. Ragen, R.R. Reeves, and R.J. Small. 1995. U.S.

Pacific Marine Mammal Stock Assessments. NOAA Technical Memorandum

NMFS, NOAA-TM-NMFS-SWFSC-219. 162 p.

NMFS. 1997a. Draft Environmental Assessment: Use of Acoustic Pingers

as a Management Measure in Commercial Fisheries to Reduce Marine

Mammal Bycatch. NMFS, Office Of Protected Resources, Silver Spring,

MD.

NMFS. 1997b. Environmental Assessment: Final Regulations to

Implement the Pacific Offshore Cetacean Take Reduction Plan, Under

Section 118 of the Marine Mammal Protection Act. August 1997.

PCTRP. 1996. Final Draft, Pacific Offshore Cetacean Take Reduction

Plan. Draft plan submitted to the National Marine Fisheries Service

and prepared by the Pacific Cetacean Take Reduction Team. August

1995. 75 p.

PCTRT. 1997. 1997 Recommendations Report: Pacific Offshore Cetacean

Take Reduction Team. July 1997. 5 p.

PSRG. 1997. Recommendations of the Pacific Scientific Review Group

from the May 1997 meeting. Unpublished document.

Reeves, R.R., R.J. Hofman, G.K. Silber, D. Wilkinson. 1996. Acoustic

Deterrence of Harmful Marine Mammal-Fishery Interactions:

Proceedings of a Workshop held in Seattle, Washington, 20-22 March

1996. NOAA Technical Memorandum, NMFS-OPR-10. 70 p.

List of Subjects in 50 CFR Part 229

Administrative practice and procedure, Confidential business

information, Fisheries, Marine mammals, Reporting and recordkeeping

requirements.

Dated: September 16, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries.

For the reasons set out in the preamble, 50 CFR part 229 is amended

as follows:

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE

MAMMAL PROTECTION ACT OF 1972

1. The authority citation for part 229, subpart C continues to read

as follows:

Authority: 16 U.S.C. 1361 et seq.

2. In subpart C, Sec. 229.31 is added to read as follows:

Sec. 229.31 Pacific Offshore Cetacean Take Reduction Plan.

(a) Purpose and scope. The purpose of this section is to implement

the Pacific Offshore Cetacean Take Reduction Plan. Paragraphs (b)

through (d) of this section apply to all U.S. drift gillnet fishing

vessels operating in waters seaward of the coast of California or

Oregon, including adjacent high seas waters. For purposes of this

section, the fishing season is defined as beginning May 1 and ending on

January 31 of the following year.

(b) Extenders. Extenders (buoy lines) of at least 6 fathoms (36 ft;

10.9 m) must be used on all sets.

(c) Pingers. (1) For the purposes of this paragraph (c), a pinger

is an acoustic deterrent device which, when immersed in water,

broadcasts a 10 kHz ( 2 kHz) sound at 132 dB (

4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds (+ 15

milliseconds), and repeating every 4 seconds (+ .2 seconds); and

remains operational to a water depth of at least 100 fathoms (600 ft or

182.88 m).

(2) Pingers must be used on all vessels, during every set beginning

October 30, 1997. While at sea, drift gillnet vessels with

multifilament gillnets onboard must carry enough pingers to meet the

configuration requirements set forth under paragraph (c)(3) of this

section.

(3) Pingers must be attached on or near the floatline and on or

near the leadline and spaced no more than 300 ft (90.9 m) apart.

Pingers attached on extenders, or attached to the floatline with

lanyards, must be within 3 ft (0.91 m) of the floatline. Pingers

attached with lanyards to the leadline must be within 6 ft (1.82 m) of

the leadline. Pingers on or near the floatline and on or near the

leadline must be staggered, such that the horizontal distance between a

pinger on or near the floatline and a pinger on the leadline is no more

than 150 ft (45.5 m). Any materials used to weight pingers must not

change its specifications set forth under paragraph (c)(1) of this

section.

(4) The pingers must be operational and functioning at all times

during deployment.

[[Page 51814]]

(5) If requested, NMFS may authorize the use of pingers with

specifications or pinger configurations differing from those set forth

in paragraphs (c)(1) and (c)(3) of this section for limited,

experimental purposes within a single fishing season.

(d) Skipper education workshops. After notification from NMFS,

vessel operators must attend a skipper education workshop before

commencing fishing each fishing season. For the 1997/1998 fishing

season, all vessel operators must have attended one skipper education

workshop by October 30, 1997. NMFS may waive the requirement to attend

these workshops by notice to all vessel operators.

[FR Doc. 97-26330 Filed 9-30-97; 4:50 pm]

BILLING CODE 3510-22-P