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USFWS may issue permit for incidental take of seabirds by Hawaii'an longline fishery

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The Environmental Assessment is here: http://www.fws.gov/p...0Draft%20EA.pdf




The permit would actually be issued to to the National Marine Fisheries Service, not to individual fishing vessels or companies.


The permit sought is a Special Purpose permit, which is described in Title 50 of the Code of Federal Regulations, section 21.27. NMFS is the Federal agency with regulatory responsibility for this fishery, which operates in the North Pacific, and has regulations in place intended to reduce incidental mortality and injury of protected species, including seabirds. Take is principally of two species of

albatrosses, the Laysan and Black-footed albatrosses (Phoebastria immutabilis and P. nigripes,



This proposed permit continues a trend by which the USFWS is using its permits system to control the extent of take of MBTA species in lieu of formal, industry-specific regulation. Similar permits for wind industry installations are also under consideration. Though it seems counterintuitive to issue a permit for an otherwise prohibited activity, and rather than prosecuting the offenders, in fact it is unlikely that any court would actually uphold a complete prohibition on every human activity that results in the take of migratory birds - which is to say, almost every human activity. By using the permit system, the USFWS can attempt to limit the extent of take by imposing conditions such as the use of preventative or mitigating measures.


In this particular case, the permit would contain the following conditions:



The permit reflects the current operation of the fishery, including the seabird-deterrent measures currently required by NMFS regulations, with no changes, regulatory or otherwise, to the operation of the fishery during the permit period. Under this alternative, all existing regulations for the shallow-set fishery would remain effective. NMFS would not be required to collect new data or otherwise expend additional resources, and no new regulations governing the operation of the fishery would be proposed. The permit application included the following commitments aimed at possible future reductions in take that would be included as permit conditions. These permit conditions would require NMFS to:


A. Analyze the high proportion (50-80 percent each year) of the total observed take in this fishery that occurs as injured birds, birds presumably taken during retrieval of longline gear. Specifically, NMFS would examine the role of untended or “lazy” lines, offal discards, and other practices in making hooks and gear available to seabirds and possibly attracting and habituating seabirds to longline vessels, especially during gear retrieval. To do this, NMFS would:

i. analyze existing and future observer data;

ii. emphasize the importance of seabird data collection to observers, and modify

observer debriefing to elicit additional information on this topic; and

iii. provide opportunities at Protected Species Workshops for fishers to specifically

discuss how and when seabird interactions occur during shallow-set fishing



B. Report the results of these activities each year in NMFS’s Annual Report, “Seabird

Interactions and Mitigation Efforts in the Hawaii Longline Fisheries,” including new

insights that could further reduce the take of seabirds in the fishery or point to research

needed to achieve reduction. Annual reports of the year’s activities would be due to the

Service before October 1 of the following year. In responding to any request for a permit

renewal, the Service would consider progress by NMFS toward identifying remedies for

take. However, incorporation of these remedies into NMFS regulatory processes would

not need to occur during the period of the initial permit.


C. If analyses, qualitative assessments, and other information do not lead to identification of

modified or new practices that could reduce take of migratory birds in the fishery, NMFS


would provide in their report study plans for needed research, and/or a proposal or

proposals for how the unavoidable take in the fishery might be offset or compensated in a

manner that would not hamper operation of the fishery. This might include contribution

to conservation projects that benefit North Pacific albatrosses, or another proposal of

NMFS’s devising. NMFS would work with the Service to develop proposals for offsets

or compensation into actions in a timely fashion. (Proposals for offsets or compensation

would not need to be implemented during the period of the permit, but the Service would

consider progress toward this goal in responding to any request for a permit renewal.)


The USFWS admits to a concern that issuance of a permit for this fishery, if it were to occur following the NEPA analysis, would set a precedent that other agencies (e.g., U.S. Forest Service, U.S. Department of Agriculture, State agencies) and industries (e.g., wind power, telecommunications) might want also apply for permits and that these applications could create an insupportable workload for the Service.


[Ed. note - this is a legitimate concern - some USFWS regions can barely keep up with the regular workload of permit applications]


The USFWS addressed this concern by saying "Under the MBTA, the Service has discretion to permit actions that result in take and to evaluate applications for take on a case-by-case basis, regardless of precedent. The analysis in this DEA will help the Service decide whether or not to issue a permit in this case, whether the criteria under which we might issue the permit are met, and what conditions to attach to a potential permit to ensure the conservation intent of MBTA is upheld. How other agencies or industries will respond to the analysis in this DEA and the Service’s ultimate decision with respect to permit issuance is difficult to predict. Some agencies might reconsider their own regulatory activities that result in incidental take of migratory birds, and apply for a similar permit as a result of this analysis. However, each permit application will require a similar review and

determination as followed in this case."

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