[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3435-3437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1379]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 990113011-9011-01; I.D. 010699A]
RIN 0648-AM06
Fisheries of the Exclusive Economic Zone Off Alaska; Observer and
Inseason Management Requirements for Pollock Catcher/Processors
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency interim rule; request for comments.
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SUMMARY: NMFS issues an emergency interim rule to establish additional
observer coverage requirements for 20 catcher/processor (C/P) vessels
identified in the American Fisheries Act (AFA). NMFS also is
establishing inseason authority to manage the non-pollock harvest
limitations required under the AFA for these 20 vessels. These actions
are necessary to monitor and manage the harvest of the listed C/Ps.
Their goal is to comply with the intent of the statutory provisions
promulgated under the AFA for these vessels in 1999.
DATES: Effective January 20, 1999, through July 19, 1999. Comments must
be received by February 8, 1999.
ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to
the Federal Building, 709 West 9th Street, Juneau, AK. Copies of the
Environmental Assessment prepared for this emergency rule may be
obtained from the same address.
FOR FURTHER INFORMATION CONTACT: Sue Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION: MFS manages the U.S. groundfish fisheries of
the Bering Sea and Aleutian Islands management area (BSAI) in the
Exclusive Economic Zone (EEZ) pursuant to the Fishery Management Plan
for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area
(FMP). The North Pacific Fishery Management Council (Council) prepared
the FMP pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq.
Regulations implementing the FMP appear at 50 CFR part 679. General
regulations at 50 CFR part 600 also apply.
On October 20, 1998, the President signed the AFA into law. The AFA
specifies the manner in which the BSAI pollock fishery must be managed,
as well as measures to limit activity of pollock vessels in non-pollock
fisheries. Section 208(e)(1) through (20) of the AFA lists C/Ps that
are subject to specific harvest limitations for pollock and non-pollock
species starting in 1999 (listed C/Ps). These harvest limitations will
be established for 1999 as part of the 1999 groundfish specification
process authorized under regulations at 50 CFR Sec. 679.20. NMFS must
implement additional observer coverage and inseason management
authority necessary to monitor and manage these harvest limitations at
the start of the 1999 fishing season. By regulation, the fishing season
begins on January 20, 1999. At its November 1998 meeting, the Council
recommended that these measures be implemented by emergency rule. The
justification for, and a description of, these measures are discussed
below.
Observer Coverage for Listed C/Ps
For the 1999 fishing year, section 211(b)(6) of the AFA requires
only those listed C/Ps that are approved to participate in the 1999
multispecies groundfish community develop quota (MSCDQ) program to
carry two observers and weigh catch on a scale on board approved by
NMFS. For the 2000 fishing year, the AFA statutory provisions state
that all 20 listed C/Ps shall (1) have two observers aboard at all
times while groundfish are being harvested, processed, or received from
another vessel in any fishery under the authority of the Council; and
(2) weigh their catch on board on a NMFS-approved scale while
harvesting groundfish in fisheries under the Council's authority.
CDQ groups have proposed that twelve of the twenty listed C/Ps
participate in the 1999 MSCDQ program. The AFA requires that each of
these 12 vessels that is approved to participate in the 1999 MSCDQ
program have two observers aboard and weigh its catch on NMFS-approved
scales at all times the vessel is used to fish for groundfish in 1999.
These additional observer coverage requirements under the AFA for
listed C/Ps do not change current observer coverage requirements for
these vessels during their participation in the 1999 MSCDQ fisheries.
Current regulations at 50 CFR Sec. 679.50 require the remaining
eight listed C/Ps to have only one observer aboard at all times the
vessel is used to fish in 1999. NMFS does not believe that one observer
can adequately monitor the catch and associated harvest limitations
specified for the listed C/Ps. Furthermore, a contract implementing a
fishery cooperative under section 210 of the AFA among listed C/Ps and
catcher vessels eligible to deliver pollock to listed C/Ps was filed
with the Council and the Secretary of Commerce on December 20, 1998.
NMFS believes that the reliance on observer data for compliance
monitoring and on management of pollock catch amounts taken by listed
C/Ps in the directed fishery for pollock or as incidental catch in non-
pollock fisheries becomes increasingly important under such a fishery
cooperative. Under a fishery cooperative, contract agreements would be
established that essentially allocate specific amounts of pollock to
individual vessels for purposes of directed fishing. Amounts of the
non-pollock groundfish harvest limitations specified for the listed C/
Ps also would be allocated under the fishery cooperative among
individual vessels. Although NMFS does not intend to actively manage
individual vessel groundfish harvests under the cooperative, it is
challenged to ensure that overall groundfish or prohibited species
catch harvest limitations are not exceeded and that the incidental
catch of pollock taken in non-pollock groundfish fisheries is not
credited against the pollock directed fishing allowance established
under section 206(b) of the AFA for vessels harvesting pollock for
processing by the listed C/Ps. To meet these management challenges,
more than one observer must be aboard to sample and provide information
on an increased number of hauls. NMFS, therefore, is implementing by
this emergency interim rule a requirement that two NMFS-certified
observers be aboard each of the 20 listed C/Ps at all times the vessel
is used to fish for groundfish in the EEZ off Alaska.
In addition to the requirement that each listed C/P carry two NMFS-
certified observers, NMFS requires that at least one of the observers
aboard each listed C/P have successfully completed the additional
training necessary to be certified to observe in the MSCDQ fisheries.
This requirement for at least one MSCDQ-certified observer is necessary
to ensure that the compliance monitoring role of the observers aboard
the listed C/Ps can be successfully accomplished. The AFA (section
211(b)) requires that the C/Ps abide by harvest
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limitations that apply only to the C/Ps. In order to monitor and
enforce these newly imposed limitations, observers with more experience
and training must be aboard C/Ps. NMFS-certified MSCDQ observers have
that experience and training. MSCDQ observers receive special training
in sampling for species composition in situations where bycatch may be
limiting, in working with vessel personnel to resolve access to catch
and other sampling problems, and in using flow scales for catch weight
measurements. Monitoring by MSCDQ-certified observers is essential for
accurate catch accounting, given the fact that a fishery cooperative
has been established and that the potential exists for fishing to be
curtailed when either groundfish or prohibited species harvest
limitations specified for listed C/Ps have been reached.
Under this emergency interim rule, only one of the two observers is
required to be MSCDQ certified so that the supply of these observers to
the MSCDQ program is not jeopardized in 1999. NMFS notes that
subsequent rulemaking establishing observer coverage requirements for
listed C/Ps after 1999 could require both observers to be MSCDQ
certified. Also, the MSCDQ-certified observer required by this
emergency rule is not required to be trained as a ``lead CDQ observer''
as described at 50 CFR Sec. 679.50(h)(1)(i)(E). A detailed discussion
on the justification for additional observer training and certification
criteria for individual vessel monitoring programs was provided both in
the preamble to the proposed rule (62 FR 43866, August 15, 1997) and in
the preamble to the final rule (63 FR 30381, June 4, 1998) implementing
the MSCDQ program.
Inseason Authority to Manage Listed C/P Harvest Limits
Congress was concerned that, given the ability to form fishery
cooperatives in 1999, listed C/Ps may utilize the benefits realized
from fishery cooperatives and enter into or increase fishing effort in
fisheries other than the pollock fishery. Section 211(b) of the AFA
seeks to protect non-pollock fisheries from major and non-traditional
redistributed fishing effort by listed C/Ps. To accomplish this,
provisions under section 211(b)(2) establish harvest limitations for
non-pollock groundfish and prohibited species that apply to listed C/Ps
and that are based on historical catch amounts. These harvest
limitations will be specified in the 1999 proposed, interim, and final
BSAI groundfish specifications under 50 CFR Sec. 679.20. Many of these
harvest limitations are small amounts of fish that will not support a
directed fishery for those species or species groups.
Current regulations do not clarify the inseason action NMFS will
implement to maintain the harvest of non-pollock by listed C/Ps within
specified harvest limitations mandated by the AFA under section 211(b).
With clarification under this emergency rule, NMFS announces its intent
to set a directed fishing allowance and close a groundfish species to
directed fishing by the listed C/Ps when a harvest limitation specified
for that species has been or will be reached. Additionally, NMFS lacks
the regulatory authority to apply a directed fishing closure only to
the 20 listed C/Ps when one or more of these non-pollock species may be
available to directed fishing by other vessels. Furthermore, NMFS lacks
regulatory authority under Sec. 679.21(e)(7) to close directed fishing
for all non-pollock groundfish by the listed C/Ps if NMFS determines
that these vessels have reached a prohibited species harvest
limitation.
This action is necessary to provide NMFS with the inseason
management tools necessary to ensure that the management of specified
harvest limitations will minimize the potential of a limit being
exceeded while optimizing the opportunity to harvest the pollock
directed fishing allowance allocated to vessels under section 206(b)(2)
of the AFA for processing by the listed C/Ps.
Under this emergency rule, NMFS will establish directed fishing
allowances for the non-pollock groundfish harvest limitations when it
appears that one or more of these amounts have been or will be reached.
The attainment of a non-pollock groundfish or prohibited species
harvest limitation established under section 211(b)(2) of the AFA will
not prohibit the listed C/Ps from participating in the directed fishery
for pollock with pelagic trawl gear. However, the attainment of a non-
pollock groundfish species harvest limitation established under section
211(b)(2) of the AFA will prohibit the listed C/Ps from participating
in the directed fishery for that species. Also, the attainment of a
prohibited species harvest limitation while fishing for non-pollock
groundfish species will result in the closure of the applicable area to
directed fishing for all non-pollock groundfish species. Bycatch or
bycatch mortality of prohibited species taken by the listed C/Ps while
participating in the pollock fishery will be credited against the
respective prohibited species bycatch allowances specified for the
pollock fishery. Consistent with existing regulations, attainment of a
bycatch allowance specified for the pollock fishery will result in
closure of a specified area to directed fishing for pollock with non-
pelagic trawl gear.
NMFS anticipates that this emergency rule will limit the listed C/
Ps' opportunity to participate in non-pollock groundfish fisheries. For
example, in order for the listed C/Ps to participate in a directed
fishery for a non-pollock groundfish species, the specified harvest
limit for this species must be sufficiently large to support a directed
fishery by the listed C/Ps. If NMFS determines that the amount is not
sufficiently large to support a directed fishery by the listed C/Ps,
directed fishing for the non-pollock groundfish species will be closed.
When directed fishing for a non-pollock groundfish species is closed,
the listed C/Ps may continue to retain amounts of that species up to
the maximum retainable bycatch amounts established in regulations at
Sec. 679.20(e) and (f).
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this rule is necessary to respond to an emergency situation and
that it is consistent with the Magnuson-Stevens Act and other
applicable laws.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable.
This emergency interim rule has been determined to be not
significant for purposes of E.O. 12866.
NMFS finds that there is good cause to waive the requirement to
provide prior notice and an opportunity for public comment pursuant to
authority set forth at 5 U.S.C. 553(b)(B). This action is necessary to
implement the requirements of the AFA as they relate to the pollock
fishery. Delaying the start of the pollock fishery beyond its scheduled
regulatory start date of January 20, 1999, would conflict with
investment-backed expectations of the regulated community and could
disrupt supply of seafood products to U.S. markets and consequently
would be contrary to the public interest. Likewise, the need to avoid
delaying the start of the pollock season constitutes good cause to
waive, pursuant to authority set forth at 5 U.S.C. 553(d)(3) the
thirty-day delay in effective date otherwise required by 5 U.S.C.
553(d). In addition, the regulated industry has been aware that these
new requirements would be necessary since the October 1998 Council
meeting and have had ample
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time to prepare for coming into compliance making a thirty-day delay in
effective date unnecessary.
The President has directed Federal agencies to use plain language
in their communications with the public, including regulations. To
comply with that directive, we seek public comment on any ambiguity or
unnecessary complexity arising from the language used in this emergency
interim rule.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: January 15, 1999.
Andrew A. Rosenberg,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set out in the preamble, 50 CFR part 679 is amended as
follows:
50 CFR CHAPTER VI
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.2, a definition of ``American Fisheries Act'' is
added in alphabetical order to read as follows:
Sec. 679.2 Definitions.
* * * * *
American Fisheries Act (AFA) (applicable through July 19, 1999)
means Title II--Fisheries, Subtitles I and II, as cited within the
Omnibus Appropriations Bill FY99 (Pub. L. 105-277).
* * * * *
3. In Sec. 679.20, paragraph (d)(1)(iv) is added to read as
follows:
Sec. 679.20 General limitations.
* * * * *
(d) * * *
(1) * * *
(iv) American Fisheries Act harvest limitations (applicable through
July 19, 1999). (A) If the Regional Administrator determines that any
harvest limitation of groundfish other than pollock, established under
section 211(b)(2) (A) or (C) of the American Fisheries Act for catcher/
processors identified in section 208(e)(1) through (20) of that Act,
has been or will be reached, the Regional Administrator may establish a
directed fishing allowance for the species or species group applicable
only to those identified catcher/processors.
(B) In establishing a directed fishing allowance under paragraph
(d)(1)(iv)(A) of this section, the Regional Administrator shall
consider the amount of the harvest limitation established under section
211(b)(2) (A) or (C) of the American Fisheries Act that will be taken
as incidental catch by those catcher/processors identified in section
208(e) (1) through (20) of that Act in directed fishing for other
species.
4. In Sec. 679.21, paragraphs (e)(3)(v) and (e)(7)(ix) are added to
read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(e) * * *
(3) * * *
(v) American Fisheries Act prohibited species catch limitations
(applicable through July 19, 1999). The aggregate amounts of any crab,
halibut or herring trawl PSC limit caught by the catcher/processors
identified under section 208(e)(1) through (20) of the American
Fisheries Act and counted against the bycatch allowances specified for
the fishery categories defined under paragraphs (e)(3)(iv)(B) through
(E) of this section shall be limited to the amounts established under
section 211(b)(2)(B) of that Act and published in the Federal Register
under paragraph (e)(6) of this section.
* * * * *
(7) * * *
(ix) Closures under the American Fisheries Act prohibited species
catch limitations (applicable through July 19, 1999). When the Regional
Administrator determines that the catcher/processors identified under
section 208(e)(1) through (20) of the American Fisheries Act have
caught the amount of any crab, halibut, or herring prohibited species
catch limitation specified under paragraph (e)(3)(v) of this section,
directed fishing for groundfish by those vessels will be prohibited in
the applicable area defined under this paragraph (e)(7), except for
pollock with pelagic trawl gear.
* * * * *
5. In Sec. 679.50, paragraph (c)(5) is added to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
21, 2000.
* * * * *
(c) * * *
(5) Observer coverage under the American Fisheries Act (applicable
through July 19, 1999). Any catcher/processor listed under section
208(e)(1) through (20) of the American Fisheries Act is required to
have two observers aboard the vessel any day it harvests, receives, or
processes groundfish. One of the two observers must meet the
qualifications described at paragraph (h)(1)(i)(D) of this section.
* * * * *
[FR Doc. 99-1379 Filed 1-15-99; 5:01 pm]
BILLING CODE 3510-22-F
