Commonwealth Numbered Regulations - Explanatory Statements

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FISHERIES MANAGEMENT AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 3

STATUTORY RULES 2001 No. 3

Issued by the authority of the Minister for Agriculture, Fisheries and Forestry

Fisheries Management Act 1991

Fisheries Management Amendment Regulations 2001 (No. 1)

Subsection 168(1) of the Fisheries Management Act 1991 (the Act) empowers the Governor-General to make regulations required or permitted by the Act to be prescribed and regulations necessary or convenient to be prescribed in carrying out or giving effect to the Act.

Subsection 14(2) of the Act provides that for the purposes of conserving the marine environment, regulations may be made in relation to, among other things, the employment of specified fishing practices or methods, the use of specified fishing equipment and the taking, and treatment of by-catches.

Subsection 14(1) provides that such regulations may prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified practices by Australian boats, boats fishing in the Australian fishing Zone (AFZ) or persons on Australian boats, whether engaged in fishing in or outside of the AFZ.

The incidental catch (or by-catch) of seabirds during oceanic longline fishing operations was listed as a key threatening process on Schedule 3 of the Endangered Species Protection Act 1992 on 24 July 1995. That Act requires the preparation and implementation of a threat abatement plan for key threatening processes within three years of the listing of a key threatening process. The Threat Abatement Plan for the incidental catch (or by-catch) of seabirds during oceanic longline fishing, operations (the TAP) was finalised in August 1998 when it was approved by the Minister for the Environment and Heritage. The TAP is now administered under the Environment Protection and Biodiversity Conservation Act 1999. The TAP was developed in consultation with the pelagic longline fishing industry, non-government conservation groups, scientists, and government authorities responsible for conservation and fisheries management, including the Australian Fisheries Management Authority (AFMA), The TAP identified means by which seabird bycatch can be mitigated. The practical implementation of the mitigation measures set out in the TAP requires, among other things, that amendments be made to the Fisheries Management Regulations 1992 (the Principal Regulations).

The Fisheries Management Amendment Regulations make these amendments to impose requirements on fishing operators to undertake particular mitigation measures when fishing using the longline method. The Principal Regulations previously provided that a fishing operator, when fishing in the AFZ south of the parallel of Latitude 30' South, must either have used a tori pole as prescribed, or held and complied with a scientific permit that permitted the use of another apparatus for the same purpose. These provisions have been remade, and further requirements both north and south of the parallel of Latitude 30' South have been imposed.

In addition to using a tori pole, operators fishing south of the parallel of Latitude 30' South are only permitted to set pelagic, or drifting, longlines at night (as most seabird species caught on longlines, are active during the day and the time between nautical dusk and nautical dawn has insufficient sunlight for most seabirds to forage), and to use only thawed baits when setting hooks (as thawed baits sink more quickly than frozen baits after line setting, allowing less opportunity for seabirds to dive on the bait before it sinks out of their diving range).

The Regulations also:

•       provide that operators fishing north of the parallel of Latitude 300 South must not set a pelagic, or drifting, longline unless a tori pole apparatus is carried in the boat. This mitigation measure is intended to encourage the use of tori poles in these areas when seabird species at risk from longlines are absent from waters north of the parallel of Latitude 30' South;

•       impose an obligation on all Australian and foreign boats in the AFZ to ensure that no offal is discharged while the crew of a boat are setting a pelagic, or drifting, longline, a demersal longline, a trotline or a dropline, and when a crew is hauling any of these lines;

•       if it is not practical to store offal on the boat until the crew has finished hauling, allow the offal to be discharged if the vessel is not under way and if the offal is discharged from the opposite side to where the line is being hauled;

•       allow AFMA to exempt a boat from the requirements of the Regulations if that boat is less than 20 metres in length;

•       allow AFMA to exempt a boat that is less than 20 metres in length by placing a condition to this effect on the relevant fishing permit, or by granting a scientific permit to test alternative mitigation measures.

A Regulation Impact Statement is attached.

Details of the Regulations, which commenced on gazettal, are set out below:

Regulation 1 provides that the Regulations are named the Fisheries Management Amendment Regulations 2001 (No. 1).

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 provides that Schedule 1 amends the Principal Regulations.

Schedule 1 Item 1 omits Regulations 19A from the Principal Regulations because this provision is remade as part of the new Part 12.

Schedule 1 Item 2 inserts a new Part 12 into the Principal Regulations to impose the appropriate. requirements in accordance with the TAP. Division 1 sets out the requirements for operators fishing south of the parallel of latitude 300 south. These operators must use a tori pole when setting hooks in the water, set their hooks between nautical dusk and nautical dawn and use thawed baits. Division 2 sets out the requirements for operators fishing north of the parallel of latitude 30' south. These operators must carry a tori pole. Division 3 sets out the requirements for discharging of offal, which relate to all longline operators.

Proposed Regulations 71, 74 and 77 provide that AFMA may exempt a boat from these requirements if that boat is less than 20 metres in length. An exemption may be given either by issuing a scientific permit for the purpose of testing other mitigation measures, or by imposing conditions on the relevant fishing permit imposing alternative mitigation measures.

Schedule 1 Item 3 substitutes a new heading for Schedule 3D of the Principal Regulations to incorporate references to the additional relevant Regulations.

REGULATION IMPACT STATEMENT FOR FISHERIES MANAGEMENT AMENDMENT REGULATIONS DEALING WITH THE ACCIDENTAL CATCH OF SEABIRDS

1        Background

Oceanic longline fishing is a method currently used by commercial operators to target several species of fish in five Commonwealth managed fisheries. A longline consists of a mainline to which numerous branchlines, each typically containing one baited hook, are attached. Longlines are generally more selective than other fishing methods because they rely on fish being attracted to baited hooks as opposed to methods using nets which work by enclosing or entangling fish. One important advantage of longline fishing is that the fish are generally landed in very good condition, which is advantage if operators intend to export their catch for sale on overseas sashimi markets.

Longline methods can be further differentiated into two styles:

1.       Pelagic longlining, which involves longlines that are configured so that the baited hooks fish in the upper portion of the water column; and

2.       Demersal longlines, which involves longlines designed to fish on or close to the seafloor.

In the Australian Fishing Zone (AFZ) all pelagic longlining is undertaken by operators licensed to fish in one or more of the following tuna fisheries;

•       Eastern Tuna and Billfish Fishery;

•       Western Tuna and Billfish Fishery; and

•       Southern Tuna and Billfish Fishery.

These operators use longlines to catch bigeye tuna, southern bluefin tuna, yellowfin tuna, broadbill swordfish, striped marlin and pelagic sharks for sale on the domestic fresh chilled and export sashimi markets. Other than southern bluefin tuna, longline fishing methods account for virtually all of the landed catch of these species. (Southern bluefin tuna is managed under a quota system and most of Australia's landed catch is taken by purse seining and transferred live to tuna farms in South Australia for further grow out before being exported to Japan).

Prior to 1998 Japanese factory longline vessels fished in the AFZ under a succession of bilateral agreements. The domestic pelagic longline fishery was small in the 1980s but has grown substantially since then and the current levels of effort now approach the level of effort associated with years in the early nineties when a significant number of Japanese vessels fished in the AFZ.

Two Commonwealth fisheries allow operators to use demersal longlines, these are:

•       The Southern Shark Fishery; in which operators target school and gummy sharks; and

•       The South East Non-Trawl Fishery, in which operators target pink ling and blueye using demersal longlines and droplines.

These species are mainly sold onto the domestic fresh chilled markets. Table 1 summarises the characteristics of the Commonwealth fisheries in which longlines are used.

Table 1: Commonwealth fisheries in which oceanic longline is permitted

Fishery	No of longline concession holders (current)	No of active concessions 1998199	Proportion of effort below 30 degrees S in 1998/99	Value of production $000
East Coast Tuna and Billfish Fishery	219	160	36%	49,933
Southern and Western Tuna and Billfish fisheries	90	23	39%	10,918
Southern Shark Fishery (demersal longline)	37	7	100%	533
South East Non-trawl Fishery (demersal longline, dropline & trotline)	130*	47**	> 99%	2,649

* Of these 130 concessions, 129 are entitled to use demersal longlines, 123 to use droplines and 122 to use trotlines

** In 1998/99 47 vessels reported setting one or more of these gear types with 32 vessels reporting dropline shots, 24 reporting demersal longline shots and one vessel reported using a trotline.

2        Problem

2.1       What is the problem being addressed?

2.1.1       Seabirds being caught on longlines

In the 1980s fisheries observers working on Japanese longline vessels fishing in the AFZ reported that low numbers of seabirds were regularly being caught and killed on the pelagic longlines being used by these vessels. Similar observations were also reported in New Zealand. This source of mortality was brought to the attention of seabird ornithologists who had already reported significant declines in populations of several albatross species based on censuses of breeding colonies.

The observed catch rates of seabirds were low in comparison to unwanted fish and shark species also taken on longlines. Initially many fishers, fisheries scientists and observers did not appreciate that these infrequent captures could constitute a threat to the survival of some seabird species. Researchers familiar with seabird biology demonstrated that when the overall level of fishing effort occurring in the southern hemisphere was taken into consideration that the increases in mortality due to longline fishing was particularly significant for albatross and some petrel species. These seabirds, unlike fish, have a reproductive strategy that results in low levels of recruitment, which makes their populations unusually sensitive to increases in mortality rates.

Most of the seabird mortalities are associated with seabirds grabbing baited hooks shortly after longlines have been deployed from the vessels. The sinking characteristics of longline gear and the manner in which it is deployed can result in hooks remaining available to foraging seabirds for up to 20 seconds after deployment. Once hooked seabirds are usually drowned as the weight of the longline gear usually drags them under the water. The seabirds caught on longlines are highly varied in conservation status. Table 2 summarises the conservation status of seabirds that have been observed caught on longlines in the AFZ.

Table 2: Seabird species affected by longline fishing bycatch in the AFZ

(adapted from the Seabird Threat Abatement Plan (ref. 1 Table 2 & 3, pp 16 -22)

Species	Forages within AFZ	Breeds within AFZ	Conservation status under the Environment Protection and Biodiversity Conservation Act 1999 (IEPBC Act)
Wandering albatross	ü	ü	Vulnerable
Black browed albatross	ü	ü	Listed marine species
Shy albatross	ü	ü	Vulnerable
Grey-headed albatross	ü	ü	Vulnerable
Light-mantled albatross	ü	ü	Data deficit
Northern giant petrel	ü	ü	Listed marine species
Southern giant petrel	ü	ü	Listed marine species
Tristan albatross	ü		Endangered
Antipodean albatross	ü		Vulnerable
Gibson's albatross	ü		Vulnerable
Northern royal albatross	ü		Vulnerable
Southern royal albatross	ü		Vulnerable
Amsterdam albatross	ü		Endangered
Campbell albatross	ü		Vulnerable
Buller's albatross	ü		Vulnerable
Pacific albatross	ü		Vulnerable
White-capped albatross	ü		Vulnerable
Salvin's albatross	ü		Vulnerable
Chatham albatross	ü		Endangered
Atlantic yellow nosed albatross	ü		Listed marine species
Indian yellow nosed albatross	ü		Vulnerable
Sooty albatross	ü		Vulnerable
Great winged petrel	ü	ü	Listed marine species
White chinned petrel	ü		Listed marine species
Westland black petrel	ü		Listed marine species
Grey petrel	ü		Listed marine species
Wedge tailed shearwater	ü	ü	Listed marine species
Flesh footed shearwater	ü	ü	Listed marine species
Sooty shearwater	ü	ü	Listed marine species
Skua spp	ü	ü	Listed marine species
Australasian gannet	ü	ü	Listed marine species

2.1.2 Extent of the problem

The mortality of seabirds on longlines is a global problem. Many of the seabirds known to be caught on longlines are highly migratory and/or have vast foraging ranges that make them susceptible to longline fishing undertaken in other nation's Exclusive Economic Zones (EEZs) and on the high seas.

Following papers by Brothers (1991) [ref.2] and Murray et al (1993) [ref. 3] which were published in scientific journals the issue gained a higher profile and many fisheries management and scientific agencies improved their data collection procedures so that they could better quantify the extent of the problem in the longline fisheries they managed.

It has since been demonstrated that pelagic longlining for tuna by factory style longline vessels and demersal longlining by factory style vessels for Patagonian toothfish is associated with significant seabird bycatch problem.

Smaller longline fisheries operate in many southern hemisphere countries however there is in many cases a lack of independent data to determine the extent of any problem.

2.1.3 Australian Fishing Zone (AFZ)

To determine the extent of the seabird bycatch problem it is necessary to accumulate independent data from a representative sample of each of the longline types. This is expensive, because seabird captures are infrequent events in a statistical sense and this means that more observation effort is needed than for a similar monitoring program seeking information on fish bycatch.

Sufficient data was collected using observers from Japanese style longline vessels to define seabird bycatch rates accurately for the factory style pelagic longlining. Table 3 summarises the estimated catch rate and extrapolated seabird mortality for access years 1995 to 1996.

Table 3: Estimated observed catch and extrapolated catch rates of seabirds in the AFZ in 1995 and 1996 (ref. no. 4 pp 2-3)

Access year	Sets	Estimated seabird catch              in the AFZ.	Seabirds caught Per 1000 hooks
	Fleet           Observed	Number           C.V
1995	3599           304	1085               0.22	0.10
1996	2058           334	1503               0.09	0.24

Analyses based on observer data gathered from Japanese longline vessels in the AFZ have determined that the most significant seabird interactions occur south of latitude 30 S. There is a general consensus that this reflects the range and distribution of albatross and petrel species. The species known to attend vessels are infrequent visitors to warmer areas because the low wind regimes associated with these latitudes place limits on their ability to undertake gliding flight.

Industry representatives and operators have indicated that the local style operations pose a much lower risk to seabirds compared to Japanese style longline vessels. Australian vessels almost exclusively use longlines made of nylon monofilament (compared to polyvinyl acetate (PVAs) based fibres) and set their longlines using a much lower boat speed than factory style vessels. These differences may reduce the period for which a baited hook set from an Australian style vessel is accessible to birds in comparison to one set from a factory style longline vessel.

Currently there has been insufficient independent data gathered from the other domestic longline sectors to adequately define seabird bycatch rates. The data collected so far is summarised in Table 4. While that data is not extensive it does provide indicative evidence that:

•       seabird bycatch is an issue for domestic pelagic longline vessels operating south of latitude 30S; and that

•       the rate of seabird bycatch in domestic demersal longline fisheries is low.

Table 4: Summary of observed data from domestic pelagic longline fisheries (19942000) and demersal longline vessels (1996 to 2000)

Area	Trips	Sets	Hooks	Seabird bycatch No. dead	Bycatch rate per 1000 hooks
Pelagic longlining • Queensland • New South Wales • North-Western Australia • Cocos (Keeling) Island • South-Western Australia • Tasmania	28 12 1 1 1 17	145 23 16 110 4 51	73,400 17,700 13,000 6,450 3,400 64,100	0 8 0 0 1 17	0.00 0.45 0.00 0.00 0.29 0.26
Demersal methods • Dropline • Demersal longline	10 5	287 38	28,400 231,500	0 0	0.00 0.00

Source: AFMA observers, BRS, TASPAWS ref. no. 5, ISMP ref. no.6 & CSIRO ref. no.7

2.1.4       Recognition of the problem

The incidental catch of seabirds during oceanic longline fishing operations was declared as a key threatening process under section 18(1) of the Endangered Species Protection Act 1992 (ESP Act) on 24 July 1995. This listing required Environment Australia (EA) to prepare a Threat Abatement Plan (TAP) within three years of listing. The TAP was prepared in consultation with the pelagic longline industry, Australian Fisheries Management Authority (AFMA), non-government conservation groups and scientists. The Commonwealth Minister for the Environment and Heritage approved the Plan in August 1998. Discussed further in 3.2.8.

2.2       Why is Government action needed to correct the problem

All seabirds affected by longlining are afforded individual protection under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and State legislation. There is also a strong community concern for the welfare of seabirds, in particular members of the albatross family, which includes the largest living seabirds the royal and wandering albatross. Conservation non Government Organisations (NGO's) have indicated through the media that they expect that this legislative protection is effectively administered to ensure effective mitigation practices are' adopted and used by the longline fishing industry.

AFMA introduced a regulation in 1995, which required pelagic longline vessels to deploy a tori pole apparatus when setting longlines south of latitude 30 S (Refer to 3.2.2). A tori pole apparatus is a bird-scaring device that reduces the opportunities for birds to take baited hooks by scaring them away from where hooks enter the water. The main deterrent effect is achieved by positioning a trailing line with attached streamers over the 'corridor' of water in which baited hooks land and subsequently sink. A tori pole and line is most effective if crew take into account the prevailing weather and other vessel setting characteristics on a daily basis when deploying it. However even when properly set tori poles are not uniformly effective in deterring all species and some more aggressive species, like skuas, continue to pursue baits under tori lines. The use of tori pole apparatus has been shown to reduce seabird bycatch by 30% to 75% on Japanese style longline vessels. Observer reports from Japanese longline vessels support the view that carelessly set tori poles are largely ineffective. The effectiveness of tori poles can vary depending on the relative orientation of a vessel to the prevailing wind. Vessels alter course frequently during line setting and this can result in the tori line being blown away from the 'corridor' in which the baits sink. The New Zealand Department of Conservation recently hosted the International Forum on Solving the Incidental Capture of Seabirds in Longline Fisheries. At the forum several presenters spoke of the good success in minimising seabird bycatch that had been achieved using 2 or 3 tori poles and lines simultaneously. Their multiple tori pole set-ups largely overcame any weather effects. However all these case studies involved fishing vessels which were considerably larger than most of the current Australian fleet so this practice might not have wide application in the current Australian domestic context.

In practice this means that the tori pole's seabird deterrent effect is reduced by weather effects and if used as a stand alone measure would be unlikely to reduce seabird bycatch across the domestic fleet to a level under the TAP target.

AFMA and EA have provided significant funds towards education initiatives aimed at encouraging industry to adopt other mitigation strategies. Most notable amongst these have been the production of a book and video, both titled Catch fish not birds.

The target rate in the TAP is 0.05 birds per 1000 hooks set. This equates to less than one bird per 20,000 hooks set which in the case of domestic pelagic longline vessels is about one month's fishing effort.

The limited amount of observer data collected from domestic pelagic longline vessels over the last few years suggest that the target rate specified in the TAP will not be met unless further more effective mitigation strategies are adopted by the longline industry, particularly south of latitude 30 S. On the other hand observer data collected from demersal longline and dropline operations over the last year support earlier data which indicated seabird bycatch rates were close to or under the TAP target.

2.3       What are the consequences on seabird populations of no action?

The impact of longline fishing is recognised as posing the greatest threat to the survival of southern hemisphere albatross species. It is however difficult to determine the impact on particular species because most of the affected species have at least one population which is vulnerable or has an unknown status. There is insufficient information on the origin of seabirds killed on longlines and hence the impact of longline bycatch an individual breeding populations.

The TAP therefore takes the approach of prescribing an overall reduction in seabird bycatch and concentrates on mitigating the key threatening process which can be measured, and not on seabird population status which cannot be adequately measured during the life of the Plan due to logistic and resource constraints.

3        Objectives of the Regulation

3.1       What are the objectives of the Government action?

A threat abatement plan must provide for the research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long-term survival in nature of native species.

The specific objective of the Seabird TAP is to reduce the incidental bycatch of seabirds taken in Commonwealth fisheries in all fishing areas and seasons to below 0.05 seabirds per 1000 hooks by 2003.

3.2       Regulation/policy currently in place

3.2.1       Fisheries Management Act 1991 (FMA)

Under this Act one of the objectives, which must be pursued by AFMA, is:

"3(1)(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (ESD) and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment;" (emphasis added)

AFMA therefore must pursue methods of reducing the impact of oceanic longlining on seabirds.

3.2.2       Fisheries Management Regulation 19A

This regulation, which came into force on 1 December 1995, requires operators to deploy a tori pole and line when setting pelagic longlines in waters south of latitude

30 a S. The objective of this regulation was to reduce the incidental mortality of seabirds associated with pelagic longlining being undertaken by the domestic longline fleet and the Japanese longline fleet fishing under license in the AFZ at that time.

The use of a tori pole and line has been shown to significantly reduce the mortality rates of seabirds attracted to baited hooks during the setting of longlines. Tori is the Japanese word for bird and this nomenclature has been adopted globally in the recognition that this 'bird scaring system' was invented by a Japanese longline fishing master.

3.2.3       National Policy on Fisheries Bycatch

This National Policy, which is administered by Agriculture, Fisheries and Forestry Australia (AFFA), was released in August 1999 requires that fisheries:

1. reduce bycatch;

2. improve protection for vulnerable and threatened species; and

3. minimise adverse impacts of fishing on the aquatic environment.

A copy of the National Policy is provided as Attachment A. (Not reproduced)

3.2.4 The Commonwealth Policy on Fisheries Bycatch

The Commonwealth Policy on Fisheries Bycatch builds on the National Policy on Fisheries Bycatch released last year. It is a tripartite policy between AFMA, AFFA and EA. The Policy requires bycatch action plans to be in place for major Commonwealth fisheries by 31 March 2001. The plans will be prepared by committees established by AFMA, which will include all stakeholders and focus on finding practical solutions and measures.

The policy includes a checklist to ensure that each plan takes into account matters

such as the feasibility of using mitigation devices and whether there is a need for education programs in a particular fishery. A copy of Commonwealth policy is provided as Attachment B.(Not reproduced)

3.2.5 Endangered Species Protection Act 1992

The Act (which is administered by Environment Australia) protects threatened wildlife by 3 principal mechanisms:

1. listing of endangered and vulnerable species (Schedule 1), - Recovery Plan

2. listing endangered ecological communities (Schedule 2); - Recovery Plan

3. listing key threatening processes (Schedule 3) - Threat Abatement Plan

3.2.6 Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act commenced on 16 July 2000. It replaced, amongst other Commonwealth statutes, the ESP Act. The EPBC Act further enhances the protection offered to seabirds compared to the ESP Act and also requires broader 'strategic assessment' of the management arrangements be undertaken for all Commonwealth fisheries. A strategic assessment is essentially an environmental audit of a fisheries management regime. The Environment Minister is responsible for approving a fisheries strategic assessment and this approval is a prerequisite to the determination of a Fisheries Management Plan by the Minister for Agriculture, Fisheries and Forestry.

The Minister for the Environment would not approve a strategic assessment for a longline fishery if there was not substantial alignment of the management arrangements with the requirements of the TAP. In the absence of an approved strategic assessment the management of the fishery would have to continue under AFMA policy, however operators would then be at risk of prosecution under the EPBC Act for any take of protected species including seabirds. In these circumstances if operators wanted to secure protection from prosecution for any incidental catch of seabirds they would have to apply to EA for Permits under the EPBC Act. EA are required to undertake public consultation for every permit application lodged which involves interactions with protected species. EA would only then issue a permit if they were satisfied that an operator's fishing permit required that all reasonable steps to ensure protected species are not killed or injured as a result of fishing. The EA permit could also specify that additional safeguards and monitoring requirements be put in place.

The Commonwealth Environment and Heritage Minister, Senator the Hon Robert Hill indicated in writing to the Hod Warren Truss, MP, Minister for Agriculture, Fisheries and Forestry in 1999 that he would consider imposing other measures like area closures to give effect to the TAP's objectives.

3.2.7 Recovery Plan for Albatrosses and Giant Petrels

The Recovery Plan was written to meet the Commonwealth Government's obligations under the ESP Act. The Plan is now administered by EA under the EPBC Act.

The Government has recognised that there are threats other than the incidental catch in longline fisheries that impact on the populations of seabirds. A draft Recovery Plan for Albatrosses and Giant petrels has been developed by Environment Australia and is currently being considered by the Minister for the Environment and Heritage. The Plan includes actions to address the deleterious impacts of feral pests on seabird breeding colonies, plastic pollution, and potential impacts of other fisheries and provides the broader conservation framework in which the TAP is positioned.

3.2.8 Threat Abatement Plan for the incidental catch (or bycatch) of seabirds during oceanic longline fishing operations

The "incidental catch (or by-catch) of seabirds during oceanic longline fishing operations" was declared on 24 July 1995 as a key threatening process under s 18. (1) of the ESP Act.

This listing obliged Environment Australia to prepare a Threat Abatement Plan (TAP) for this threatening process within three years of listing. This process was completed in August 1998 when the Commonwealth Minister for the Environment approved the TAP. The Plan is binding on the Commonwealth and provides the framework for a nationally coordinated action to alleviate the impact of longline fishing activities on seabirds. The TAP recognised that practical implementation of certain prescriptive mitigation strategies would need to be administered under the Fisheries Management Ad 1991. Like the Recovery Plan for Albatrosses and Giant Petrels the TAP is administered: by EA, under the EPBC Act.

The TAP was prepared in consultation with the pelagic longline fishing industry, nongovernment conservation groups, scientists, and government authorities responsible for conservation and fisheries management.

The TAP aims to reduce the by-catch of seabirds during longline operations in the AFZ by:

1.       prescribing appropriate modifications to fishing practices or equipment;

2.       providing for development of new mitigation measures;

3.       educating fishers and the public; and

4.       collecting information necessary to improve knowledge of seabird-long line fishery interactions.

Without the TAP it would be an offence to knowingly or recklessly take a seabird under the EPBC Act. Consequently it is highly likely that oceanic longlining would not be permitted south of latitude 30 South in the absence of the TAP. A copy of the TAP is provided as Attachment C. (Not reproduced)

4        Options

The Commonwealth's commitment to undertake certain actions to address seabird bycatch was confirmed when the Minister for the Environment and Heritage approved the Seabird TAP. Our best estimates for current seabird catch rates are not precise, however the limited observer data that exists indicates that a course of no action (status quo) would fail to deliver the TAP's primary objective. For this reason the status quo option will not be considered.

Four options that have the potential to improve the Australian longline fleet's seabird mitigation practices are considered below.

4.1       Expanded education and extension program and voluntary use of mitigation measures

Under this option AFMA would work with EA and industry to develop programs to encourage better practice in regard to current compulsory mitigation measures (tori pole and lines) and voluntary use of other mitigation measures through further extension and education campaigns. Under this scenario AFMA would have no choice but to put in place observer programs to collect sufficient independent data so that the effectiveness of this approach could be assessed to the satisfaction of EA and other stakeholders.

4.2       Industry Code of Conduct (quasi regulation)

This option would be similar to 4.1 however the extension and education campaigns would be underpinned by the development of an Industry Code of Conduct. (The longline fishing industry is already required to develop such a Code under the TAP). Under this scenario AFMA and EA would be in a better position to seek an up-front commitment from Industry to contribute towards independent monitoring to gather data on the uptake of mitigation practices and on their effectiveness in reducing seabird bycatch.

4.3       Specify for the use of mitigation measures on each longline fishing concession granted by AFMA

The use of mitigation measures could be implemented as conditions on each fishing permit and statutory fishing right granted by AFMA under sections 32(7), 33(4) and 22(4) of the Fisheries Management Act 1991.

4.4       Introduce Fisheries Management Regulations to require the use of seabird mitigation measures

Under this option regulations, which would require the use of certain mitigation devices and/or strategies, would be implemented under the Fisheries Management Act 1991. These regulations would apply generally to all holders of longline fishing concessions.

5        Assessment of the impact of each option

5.1       Expanded education and extension program and voluntary use of mitigation measures

There is strong public concern over the conservation of albatross and petrel species, particularly in regard to incidental mortality associated with longline fishing. Representatives from Conservation NGOs have indicated throughout the preparation of the TAP and in the subsequent drafting of the regulations that effective seabird mitigation measures should be mandatory in areas known to have seabird longline interactions.

A large proportion of the longline industry recognise that incidental seabird bycatch must be reduced, however not all operators regard this as an immediate priority and a proportion would be unlikely to adopt mitigation measures on a voluntary basis.

It has also been shown that seabirds are not always hooked when they attack baited hooks, and that for every bird hooked approximately 10 other baits will be lost before they can have a chance to catch a fish. There is therefore an economic incentive to minimise the immediate impact of seabirds attacking baited hooks. Currently however there are no limits on the number of hooks operators can set on a daily basis so losses to seabirds are probably not seen as a significant issue.

Under this scenario AFMA would have no choice but to put in place observer programs to collect sufficient independent data so that the effectiveness of this approach could be assessed to the satisfaction of EA and other stakeholders. It is very expensive to gather credible information on seabird bycatch. EA and AFMA commissioned CSIRO in 1998/99 to design an observer program for longline fisheries that, would deliver information that was sufficiently reliable for management and conservation purposes. CSIRO recommended that between 10% and 30 % of fleet activity needed to be observed to achieve the TAP's objectives. AFMA Management costed a program of this scale at between $1.4 and $2.4 million per annum. Industry regarded this cost as prohibitive even if the Commonwealth Government was to meet 50% of the cost of the program.

Under this option no additional seabird mitigation measures would be prescribed by AFMA in Management Plans, Policies, Regulations or Bycatch Action Plans. EA would not be able to provide a fishery wide accreditation of such arrangements under the EPBC Act. Operators wishing to fish in areas of known seabird abundance would therefore have to seek Permits from EA or risk prosecution should they injure or kill a seabird in the course of their operations. This would involve administrative delays and add an additional level uncertainty for industry because EA are required to undertake public consultation on each permit application prior to seeking final approval to issue the permit from the Minister for Environment and Heritage.

The cost to industry of an extensive observer program would make this the most expensive option. The accreditation of the existing management arrangements under the EPBC Act could not take place for several years until a time series of data had been established that reliably demonstrated that the expanded education and extension program had helped the fishery meet TAP objectives.

5.2       Industry Code of Conduct

The development of an Industry Code of Conduct for pelagic longline vessels is required under the TAP. The TAP identified a need for the voluntary adoption of seabird bycatch measures in addition to the mandatory measures, as well as the promotion of safe release of live seabirds.

There are four peak industry bodies that represent operators affected by the proposed regulations. Not all operators are members of these industry bodies and the industry does not have any form of effective sanction that could be applied to those who did not conform with the Code of Conduct. Industry has not provided Environment Australia with a draft Code of Conduct as of 22 November 2000.

AFMA would still need to ensure that an appropriate level of independent monitoring was provided for in management arrangements. Costs would be similar to those provided for in 4.1 although it is possible that Industry, on the strength of a Code of Conduct, could seek to have the coverage levels set at the lower end of the range recommended by CSIRO. This would translate to an annual program costing in the vicinity of $1.4 million.

Industry would have to meet the cost of producing and distributing the Code however these costs would be relatively insignificant if industry were able to negotiate for a reduced level of observer coverage in light of the public commitment as espoused in their Code of Conduct.

The EPBC Act does not provide for the accreditation of Codes of Conduct. So this option would have similar implications as 4.1 in regard to the accreditation of the existing management arrangements under the EPBC Act.

5.3       Specify for the use of mitigation measures on each longline fishing concession granted by AFMA

Section 14 of the Fisheries Management Act 1991 gives direction to AFMA in regard to conserving the marine environment and empowers AFMA to regulate in relation to the employment of specific fishing practices or methods and the use of specified fishing equipment.

Alternatively specifying the mitigation measures as conditions on each fishing concession would involve developing an appropriate set for each concession and include these on each fishing concession granted by AFMA. This would need to be done for 476 concessions each year. This would require the use of considerable resources at AFMA each year and these costs would be recovered from industry. AFMA recently issued a variation to longline permits in the tuna fisheries in regard to a matter that did not require AFMA to consult with all stakeholders. This took an estimated 3 to 4 person days to implement and required that each permit holder be notified. This cost (approximately $500 per day for a Licensing Officer) is fully recovered from those permit holders.

Specifying the mitigation measures on fishing concessions would also provide the opportunity for each concession holder to apply for internal review of their mitigation measure prescription, and if dissatisfied with the review decision to apply to the Administrative Appeals Tribunal (AAT) for further review.

The TAP also encourages the development of improved seabird mitigation devices and practices. If AFMA were required to implement new requirements then every fishing concession would have to be varied individually.

The proposed regulations provide for exemptions in certain circumstances and these would be managed under scientific permits or by variation to an operator's concession. AFMA considers it appropriate that variations or exemptions sought by individuals are managed under fishing concessions whereas mandatory mitigation measures are implemented using regulations.

Option 4.3 is the first option considered in which the use of additional seabird mitigation measures is mandatory. Option 4.3 more closely reflects the intention of the TAP, which is to:

1)       put in place, as soon as possible, known measures that will significantly reduce the likelihood of catching seabirds, while

2)       encouraging the development of more effective and acceptable mitigation measures; and

3)       implement a reliable information gathering program designed to measure the success of TAP and the efficacy of any new seabird mitigation strategies.

EA and Conservation NGOs will regard the implementation of mandatory measures, either as permit conditions or in regulation, as a satisfactory outcome. Once all stakeholders are confident that some effective mitigation practices are in place, they will be in a better position to negotiate on other TAP actions that are expected to be costly to implement. So while the cost of implementing Option 4.3 is certainly higher than Options 4.1 and 4.2 the surety it provides could for example, pave the way for more modest observer program. This potential outcome has much lower cost implications for the industry and community.

It is important to note that when the Industry approached the Minister for the Environment and Heritage in February 2000 they did not object to the introduction of seabird mitigation regulations but to the cost of the extensive observer program required under the TAP.

5.4       Introduce Fisheries Management Regulations to require the use of seabird mitigation measures

The Fisheries Management Regulations have broad application, and the mitigation measures can apply to all Commonwealth operators setting longlines in the AFZ. Any variation to seabird mitigation measures currently in the proposed regulations would be relatively easy to implement via an amendment to the regulations and notification of change to each concession holder. A copy of the draft regulations is provided at Attachment E.

The impact of the options on the community, fishers (operators) and Government is summarised in Table 5.

The suite of regulations being implemented under the TAP will, in concert with the existing tori pole and line requirements (which have been remade in the amending regulations), provide for the adoption of a set of integrated seabird mitigation practices appropriate to:

1.       the type of longlining being used; and

2.       the probability of encountering seabirds known to access baited hooks in that area of waters.

The regulations will impact differently on demersal and pelagic sectors of the oceanic longline industry and within the pelagic sector the impact will be significantly greater for operators working south of latitude 30 0 South. Accordingly operators affected by the proposed regulations can be separated into three categories, these, in ascending order of impact, are:

1.       Demersal longline operators all waters;

2.       Pelagic longline operators operating north of latitude 30 degrees South; and

3.       Pelagic longline operators operating south of latitude 30 degrees South.

Table 5 distinguishes between these categories.

Background information is provided in Attachment D that explains the rationale for the differential application of the proposed regulations across the domestic longline fishing fleet.

6        Consultation statement

The structures through which AFMA undertakes consultation are outlined in the Fisheries Administration Act 1991. An important feature of the AFMA model is that management responsibility resides with an expertise based Board and a Management Advisory Committee/Consultative Committee (MAC/CC) structure which draws its membership from relevant stakeholder groups, including the commercial fishing industry.

The Seabird TAP is binding on the Commonwealth and the Plan requires that certain mitigation practices be included in regulation (Section 7 pp 31-35). The Plan was developed by Biodiversity Group, Environment Australia in consultation with the pelagic longline fishing industry, non-government conservation groups, scientists and Government authorities responsible for conservation and fisheries management. Representatives from each stakeholder group were nominated to participate in the Threat Abatement Team. The Team advised the Biodiversity Group on issues that arose in the drafting of the Plan and provided comments on the Plan. The Team was formed in 1997 and has met seven times.

Under the Plan AFMA was required to implement several actions, most notably the regulations and an observer program. AFMA Management formed a Regulations Drafting Group after the TAP was approved by the Minister for the Environment in August 1998. This group included three industry representatives and has met twice since then as well as providing comments an various drafts of the seabird mitigation regulations.

AFMA has also provided the relevant Fishery MACs with updates on the draft regulations including minutes from the Drafting Group meetings. Industry members an the Drafting Group were responsible for the most significant change to the proposed regulation package, which was the removal of mandatory line weighting prescription as required under the TAP.

Continued consultation is occurring between stakeholders an the issue of incidental seabird bycatch. A ten vessel trial of underwater setting chutes is proceeding with joint Government, and industry support and all stakeholders are hopeful that this technology will offer industry a less intrusive alternative to night setting in waters south of latitude 30 degrees S.

7        Recommended option

The preferred option is 4.4, that being to implement the seabird mitigation measures as an amendment to the Fisheries Management Regulations. This option is preferred because AFMA does not believe that the options of expanded education and extension programs (Option 4.1) and of an industry code of conduct (Option 4.2) would meet the objective because:

1)       there is insufficient incentive for industry to comply; and because

2)       both options would need to undertaken in concert with extensive observer programs which are strongly opposed by industry.

While Option 4.3 is likely to meet the objective, it would be more costly to Industry to implement and manage and more costly to AFMA resources in that it could result in a succession of appeals from operators unhappy with their permit conditions.

Option 4.4 will allow AFMA to meet its obligations under the Seabird TAP and provide greater security of access for operators using oceanic longlining to the southern waters of the AFZ. The final draft package of regulations being put forward are the result of an extensive consultative process and industry suggestions have been incorporated.

8        Implementation and review of the preferred option

The amendment to the Fisheries Management Regulations will be advertised in the Gazette upon acceptance by the Federal Executive Council and signature by the Governor-General. All relevant fishing concession holders will be notified in writing of the amendment to the regulations and the restrictions it places upon them.

AFMA, the TAP team and Environment Australia will review the seabird mitigation measures specified in this regulation amendment for their effectiveness on an annual basis.

Consideration will be given to amending the regulations if analysis of data collected in the tenvessel trial of underwater setting chutes is conclusive. AFMA expects that the trial will to be completed early in autumn 2001.

AFMA Environment Section

20 December 2000

9       References

1)       Brothers, N.P., 1991. Albatross mortality and associated bait loss in the Japanese longline fishery in the Southern Ocean. Biol. Conserv. 55: 255-68

2)       Murray, T.E., Bartle, J.A., Kalish, S.R. & Taylor, P.R. 1993. Incidental Capture of seabirds by Japanese Southern Bluefin Tuna longline vessels in New Zealand waters, 1988-1992. Bird Conservation international 3, 181-210

3)       Brothers,N.P.; Cooper,J. & Lekkeborg, S. The incidental catch of seabirds by longline fisheries: worldwide review and technical guidelines for mitigation.

       FAO Fisheries Circular. No. 937. Rome, FAO. 1999. 100p

4)       Brothers, N., Gales, R. and Reid, T. (1999). Seabird interactions with longline fishing in the AFZ: 1998 seabird mortality estimates and 1988-1998 trends. Nature Conservation Report 9913, Parks and Wildlife Service, Tasmania

5)       Environment Australia - 1998 Threat Abatement Plan for the incidental catch (or by-catch) of seabirds during oceanic longline fishing operations

6)       Heinemann, D., Farley J., Clear, N., Gunn, J., Klaer, N. and Whitelaw, W. (1999).

Pilot Seabird Bycatch Observer Program for Australian Domestic Longline Fisheries. CSIRO Marine Research

7)       Klaer, N and Polacheck, T. 1997. Japanese longline seabird bycatch in the Australian Fishing Zone April 1995 - March 1997. CCSBT-ERS/97126

8)       Knuckey, 1 and Gill, S. South East Fishery Non-Trawl Monitoring Program Progress Report to the Australian Fisheries Management Authority - March 2000

9)       Klaer, N and Polacheck, T. 1995 Japanese longline seabird bycatch in the Australian Fishing Zone April 1991 - 1994. Catch and catch rates by area and season and an evaluation of the effectiveness of mitigation measures. CSIRO Division of Fisheries, Hobart.

10)       Duckworth, K. 1995 Analysis of factors which influence seabird bycatch in the Japanese Southern Bluefin Tuna longline fishery in New Zealand waters; 1989 to 1993. NZ Fisheries Assessment Research Document 95/26.

Attachment D - Application of the proposed seabird mitigation regulations

Demersal longline operators

Operators setting demersal longlines are required to comply with offal handling practices provided for in Division 3 - Discharge of Offal. The regulations provide for periodic en-masse dumping of offal during times when longline gear is being operated. In terms of the risk to seabirds the worst case scenario is the discharge of a semi continuous stream of discarded bait, and/or offal taking place when the vessels are setting or retrieving hooks. Seabirds attending a vessel are greatly encouraged by a steady trickle of-offal pieces which ultimately increases the chances of seabirds being hooked if such discharge coincides with hooks being accessible while being set or retrieved. Prohibiting offal discharge during the setting of longline gear is paramount because most seabirds are hooked during setting and die as a result. The periodic dumping of offal during line hauling reduces the incentive for seabirds to follow the vessel and reduces the level of aggressiveness with which they seek hooks being returned with bait or bait fragments still intact. Seabirds hooked during hauling are frequently landed alive, however many of these birds would suffer post-hooking mortality.

Pelagic longline operators operating north of latitude 300 South

These operators will, like the demersal longline operators, be required to comply with offal handling practices provided for in Division 3 - Discharge of Offal.

In addition they will be required, under Division 2 - Longline fishing in northern waters, to carry a tori pole and line when operating north of latitude 30 0 South. While the risk of encountering albatross and other petrel species in northern waters is reduced there are expected to be times of the year when weather events and/or the migratory habits of certain species result in significant numbers of at risk birds being present. The TAP recognises that using a tori pole and line in these circumstances would the prudent course of action, however this regulation differs from Regulation 19A in not requiring use of the tori pole and line during every line setting operation. The Industry Code of Conduct is expected to dovetail with Regulations 72 to 74 and provide guidance to operators in the appropriate use of tori poles and lines in northern waters.

Pelagic longline operators operating south of latitude 30 degrees South

The proposed regulations will have the greatest impact on operators wishing to set (deploy) pelagic longlines south of latitude 30 South.

Operators will be required to:

1.       night set (Regulation 70 and 71);

2.       use only thawed baits (Regulation 70 (b);

3.       comply with offal handling practices provided for in Regulation 75,76 & 77; and

4.       continue to use Tori poles and lines when setting (current Regulation 19A which will be covered under Regulation 68 and 69 upon gazettal.

Night setting

Operators will be required to set their longline in the hours of darkness unless they can demonstrate an alternative method that prevents seabirds accessing baited hooks.

Scientific analyses of observer data from longline operations have shown that night setting can significantly reduce the bycatch rate of seabirds. Seabirds following vessels, while responding to olfactory cues, actually pursue and grab baits using their keen vision. Seabirds will still attempt to follow boats at night but their success rate in grabbing baits is significantly reduced, although significant spikes in the catches of certain species have been shown to be statistically significant with respect to the effect of the full moon.

Thawed baits

Operators are also required to use thawed baits only. Baits that are still partly frozen are more buoyant than properly thawed baits and sink more slowly. Many pelagic longline operators prefer not to place weights on branchlines, in these cases the use of un-thawed baits can significantly increase the time such baited hooks are available to seabirds common to southern waters.

Offal handling

As for 1 and 2.

Tori poles and lines

The requirement to deploy a tori line, constructed in line with Schedule 3D, when setting pelagic longlines south of latitude 30 South remains. Current Regulation 19A has been redrafted so as to integrate it with the rest of the proposed regulations for the Incidental catch of seabirds.