[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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nmfs.noaa.gov/bycatch.htm.
address: http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nmfs.noaa.gov/bycatch.htm.
 Also, a copy of the petition may be 

http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nmfs.noaa.gov/bycatch.htm. This comprehensive report 

at http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.st.nmfs.gov/st1/nop/.
Observer Program's website, at http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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

[[Page 11518]]

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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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