[Federal Register Volume 62, Number 232 (Wednesday, December 3, 1997)]
[Rules and Regulations]
[Pages 63880-63891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31711]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 970611133-7263-02; I.D. 052997B]
RIN 0648-AJ36
Fisheries of the Exclusive Economic Zone Off Alaska; Improved
Retention/Improved Utilization
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a final rule to implement Amendment 49 to the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area (FMP). This final rule requires all vessels
fishing for groundfish in the Bering Sea and Aleutian Islands
Management Area (BSAI) to retain all pollock and Pacific cod beginning
January 3, 1998, and all rock sole and yellowfin sole beginning January
1, 2003. This final rule also establishes a 15-percent minimum
utilization standard for all at-sea processors beginning January 3,
1998, for pollock and Pacific cod and, beginning January 1, 2003, for
rock sole and yellowfin sole. This action is necessary to respond to
the fishing industry's socioeconomic needs that have been identified by
the North Pacific Fishery Management Council (Council) and is intended
to further the goals and objectives of the FMP.
DATES: Effective January 3, 1998.
ADDRESSES: Copies of Amendment 49 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action may be obtained from NMFS, P.O. Box
21668, Juneau, AK 99802, Attn: Lori J. Gravel. Send comments regarding
burden estimates or any other aspect of the data requirements,
including suggestions for reducing the burdens, to NMFS and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Washington, DC 20503, Attn: NOAA Desk Officer.
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.
SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the
exclusive economic zone of the BSAI are managed by NMFS under the FMP.
The FMP was prepared by the Council under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). Regulations
governing the groundfish fisheries of the BSAI appear at 50 CFR parts
600 and 679.
At its September 1996 meeting, the Council adopted Amendment 49 to
the FMP and recommended that NMFS prepare a rulemaking to implement the
amendment. A notice of availability of Amendment 49 was published in
the Federal Register on June 5, 1997 (62 FR 30835), and invited comment
on the amendment through August 4, 1997. A proposed rule to implement
Amendment 49 was published in the Federal Register on June 26, 1997 (62
FR 34429). Comments on the proposed rule were invited through August
11, 1997. A total of twelve letters of comment on the amendment and/or
the proposed rule were received. Nine letters of comment were received
by the end of the comment period on Amendment 49. Of these nine, two
comments opposed Amendment 49, and seven comments supported approval
but recommended changes to the proposed rule. Of the three letters of
comment received after the end of the comment period on the amendment
but before the end of the comment period on the proposed rule, two
opposed Amendment 49 and implementation of the proposed rule. One
supported approval of Amendment 49 but recommended changes to the
proposed rule. Comments on both the amendment and the proposed rule are
summarized and responded to in the Response to Comments section below.
Upon reviewing the reasons for Amendment 49 to the FMP and the
comments on the proposed rule to implement it, NMFS determined that
this action is necessary for the conservation and management of the
groundfish fishery of the BSAI. NMFS approved Amendment 49 on September
3, 1997, under section 304(a) of the Magnuson-Stevens Act. Additional
information on this action may be found in the preamble to the proposed
rule and in the EA/RIR/FRFA.
The Council also adopted a parallel Amendment 49 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska (GOA) in June 1997
and recommended that NMFS prepare a rulemaking to extend the Improved
[[Page 63881]]
Retention/Improved Utilization (IR/IU) program to the GOA. A proposed
rule to implement Amendment 49 in the GOA was published in the Federal
Register on August 18, 1997 (62 FR 43977) with comments invited through
October 2, 1997.
Response to Comments
Comment 1: The IR/IU program will severely disadvantage small
entities to the benefit of large at-sea and shoreside processors. These
impacts will be highly allocative and are an inappropriate result of an
FMP amendment that has no conservation purpose but is intended solely
to respond to the socioeconomic needs of the fishing industry.
Response: The purpose of this amendment is to reduce discards. The
EA/RIR/FRFA prepared for Amendment 49 concluded that the action could
impose significant economic impacts on a substantial number of small
entities. The extent of the impact for a particular operation will be
directly proportional to the level of discards of the four IR/IU
species. Vessels or fisheries that currently discard IR/IU species at
high rates will face a substantially greater burden than vessels or
fisheries with lower discard rates of IR/IU species. The impact on a
particular operation also is expected to vary inversely with the size
and configuration of the operation, with larger processors more likely
to have the space and infrastructure necessary to retain and process
IR/IU species. Catcher/processors face greater space constraints than
onshore processors, and are limited in their ability to expand due to
vessel moratorium, license limitation, and U.S. Coast Guard load line
requirements. As a result, the impacts of the IR/IU program are
expected to fall most heavily on catcher/processors, especially smaller
factory trawlers that lack the capacity to produce fishmeal.
During development of Amendment 49, the Council considered and
rejected alternatives that might have mitigated impacts on smaller
factory trawlers. Alternatives that would have established exemptions
or phase-in periods based on vessel size were rejected because they
would have diluted expected reductions in bycatch and discards and
because they were thought to favor sectors of the industry with high
discard rates. The Council believed that an inevitable and appropriate
consequence of any discard reduction program is that the compliance
burden would be proportionate to the current bycatch and discard rate
of a particular operation.
NMFS currently is assisting with industry efforts to develop more
selective fishing gear and fishing techniques to reduce the adverse
economic impacts of Amendment 49. NMFS approved a large-scale fishing
experiment in the BSAI during August 1997 to test experimental trawl
gear designed to reduce pollock bycatch in flatfish trawl fisheries.
Initial results from the experiment have been promising and will be
made available to the public in late 1997. These and other efforts may
assist the industry in significantly reducing the effects of Amendment
49 on certain trawl fisheries. Amendment 49 provides incentives for the
Alaska groundfish industry to develop innovative solutions for reducing
bycatch that also could be applicable to other fisheries throughout the
United States and the world.
Comment 2: The EA/RIR/IRFA does not calculate net economic benefits
or contain a cost benefit analysis as required under E.O. 12866.
Response: The Office of Information and Regulatory Affairs of the
Office of Management and Budget has concurred with NMFS' determination
that this rule is not significant for purposes of Executive Order
12866. Accordingly, the requirements of section 6(a)(3)(B) and (C),
e.g., formal benefit/cost analysis, are not applicable to this
regulatory action. However, the requirements of section 1(b), The
Principles of Regulation, are applicable, including principle 6 which
requires ``each agency [to] assess both the costs and the benefits of
the intended regulation and recognizing that some costs and benefits
are difficult to quantify, propose, or adopt a regulation only upon a
reasoned determination that the benefits of the intended regulation
justify its costs.'' NMFS has fully complied with this requirement.
NMFS has noted repeatedly during the 4 years of analysis for
Amendment 49 that the cost data necessary to conduct a rigorous,
quantitative net benefit analysis are not available. When the industry
has been invited to provide such data, it has declined to do so.
Therefore, NMFS prepared an analysis on the basis of the best available
scientific information. This largely gross revenue analysis was
supplemented with qualitative assessments of the probable response of
the affected sectors, the probable environmental response, as well as
the potential price and market response, to the proposed action. Review
and advice was sought from the Council's Advisory Panel and Scientific
and Statistical Committee as well as other experts, from within the
industry and outside the industry, in an effort to test the conclusions
of the analysis against their respective experience and expertise.
Given the limitations on data, these experts consistently affirmed the
analytical approach as well as the findings of the analysis. The EA/
RIR/FRFA meets the rigor with which benefits and costs of amendments to
the FMP have been analyzed, historically.
Comment 3: The IR/IU program may not satisfy Magnuson-Stevens Act
provisions that require management programs ``to the extent practicable
and in the following priority--(A) minimize bycatch; and (B) minimize
the mortality of bycatch which cannot be avoided.'' If no restrictions
are placed on the production of fishmeal, many operations will have
little incentive to reduce their bycatch of undersize fish and unwanted
species. To satisfy this requirement, the program must demonstrate that
such reductions are the result of increased avoidance of the types of
unwanted pollock, Pacific cod, rock sole, and yellowfin sole that
fishermen currently harvest. If the proposed program simply causes
industry to retain and use bycatch without increasing the avoidance of
these fish, the statutory requirement to minimize or avoid bycatch will
remain unfulfilled.
Response: The Magnuson-Stevens Act defines the term ``bycatch'' as
``fish which are harvested in a fishery, but which are not sold or kept
for personal use, and includes economic discards and regulatory
discards.'' Because the IR/IU program requires 100 percent retention of
the four IR/IU species, bycatch of these species, as defined in the
Magnuson-Stevens Act, will largely be eliminated in the groundfish
fisheries of the BSAI.
With respect to the issue of ``avoidance,'' the IR/IU program will
provide significant incentives for all sectors of the industry to avoid
unwanted harvest of IR/IU species. While operations that have the
capacity to produce fishmeal may face less immediate incentives to
avoid unwanted harvest of IR/IU species, the EA/RIR/FRFA concluded that
the IR/IU program will provide an incentive for all sectors of the
industry, including those with fishmeal processing capacity, to avoid
the unwanted harvest of IR/IU species. This is so because processing
fishmeal draws resources away from the production of higher value
products. However, most catcher/processors and motherships with
fishmeal processing capacity were designed to operate in the midwater
pollock fishery. When participating in that fishery, these vessels
already retain nearly 100 percent of their pollock and have little
unwanted harvest of other groundfish
[[Page 63882]]
species. Consequently, the IR/IU program is expected to have less
impact on these operations.
Operations that participate in less selective bottom trawl
fisheries and that do not have the capacity to produce fish meal will
have a significant incentive to avoid the harvest of unwanted or un-
targeted IR/IU species due to the cost of holding less valuable species
in lieu of more valuable species. The Council expects that the economic
incentive produced by the IR/IU program will generate innovative gear
and fishing techniques as operators develop methods to comply with full
retention requirements in a cost-effective manner. Currently, an
association of factory trawlers configured for head-and-gut (H&G)
processing is testing experimental fishing gear designed to reduce
unwanted harvests of pollock and Pacific cod in flatfish fisheries.
The Council considered and rejected various proposals to limit
production of fishmeal. Such proposals were considered to be
unreasonably restrictive and of questionable benefit. A limit on
fishmeal production would impose substantial additional costs on
operations that have developed fishmeal plants for the purpose of
processing fish waste, yet such limits would not increase benefits to
the nation.
Comment 4: Section 313(f) of the Magnuson-Stevens Act requires that
in implementing section 303(a)(11), the Council shall ``submit
conservation and management measures to lower, on an annual basis, for
a period of not less than 4 years, the total amount of economic
discards occurring in the fisheries under its jurisdiction.'' If the
proposed IR/IU program is to satisfy this requirement, it must meet two
criteria. First it must demonstrate annual reductions in the total
amount of economic discards over a 4-year period. The proposed IR/IU
program will result in a 1-year reduction in economic discards of
pollock and Pacific cod, with no further reductions scheduled until 5
years later when a one time reduction in rock sole and yellowfin sole
will be required. To satisfy the statutory requirement, the Council
must identify where and how reductions in economic discards are to
occur in years two, three, and four.
Response: See response to comment 3. The IR/IU program prohibits
economic discards of pollock and Pacific cod beginning January 1, 1998,
making additional reductions unnecessary for those species. With
respect to bycatch of other species, the IR/IU program is but one
element of the Council and NMFS's ongoing efforts to reduce bycatch and
is not intended to reduce all forms of bycatch occurring in the
groundfish fisheries off Alaska. Other existing bycatch reduction
programs include time and area closures, prohibited species catch
limits, gear restrictions, support for gear research, and the vessel
incentive program. Additional bycatch reduction programs are also under
consideration by the Council.
Comment 5: The IR/IU proposal does not meet the goals identified by
the Council's problem statement. Amendment 49 will fail to meet the
Council's first goal to assure the long-term health of the fish stocks.
The EA/RIR/IRFA concludes that the program, as designed, will fail to
provide any conservation or positive environmental impact while most
likely resulting in a decrease of long-term economic benefits to the
nation. Of the industry sectors operating in the North Pacific, only
the pollock and crab fleets lack a long-term stable fisheries-based
economy due to limited stocks. This plan does nothing to address the
waste of crab in the directed crab fisheries and will simply encourage
more meal production rather than increase the supply of pollock
available for surimi and fillet production.
Amendment 49 also will fail to meet the Council's second goal:
reducing bycatch, minimizing waste, and improving utilization of fish
resources. While some short attention was paid to defining waste, the
EA/RIR/IRFA did not sufficiently analyze the real question raised by
the program: Will we expend more resources and receive less benefit
from our fish resources by implementing the proposal? The proposed IR/
IU program will encourage continued economic loss and waste by (1)
allowing fish that are currently discarded to be turned into meal, and
(2) encouraging the use of resources to produce products worth less
than the cost of production.
Response: See response to comments 3 and 4. Amendment 49 is only
one of many efforts by the Council to reduce bycatch and ensure the
long-term health of fish stocks. The Council is considering other
efforts to reduce groundfish and crab bycatch including time and area
closures, prohibited species catch limits, research into more selective
fishing gear, and a vessel incentive program. The EA/RIR/FRFA prepared
for Amendment 49 concluded that the program would provide a net benefit
to the nation through a reduction in discards and improved utilization
of species once they are harvested. The Council concurred in this
conclusion as demonstrated by its unanimous vote to adopt Amendment 49.
Comment 6: While both of NMFS's Federal Register notices and the
EA/RIR/IRFA analysis conclude that there will be no environmental
benefit resulting from Amendment 49, Council on Environmental Quality
(CEQ) regulations implementing NEPA still require the preparation of an
environmental impact statement (EIS) for this major Federal action. CEQ
regulations state that events which trigger an EIS include such
indirect effects as changes in the use of ecosystems, and changes in
historic and social effects, whether or not they are indirect or
cumulative (40 CFR 1508.8(b)). An action also is significant when the
effect on the human environment is highly controversial (40 CFR
1508.27(b)(4)) or is precedent setting (40 CFR 1508.27(b)(6)). The fact
that the primary stated goal of the program is to avoid public censure
of ``waste'' at the national level implies that this proposal is
controversial. The EA/RIR/IRFA finds that the IR/IU program will
significantly disadvantage an historic user group and is even intended
solely for the purpose of meeting social needs. It certainly stands to
establish a precedent for the nation. In other words, the EA/RIR/IRFA's
findings clearly and unambiguously demonstrate that the IR/IU program
is a major Federal action significantly impacting the human
environment; therefore NEPA requires the preparation of an EIS.
Response: NMFS has determined that Amendment 49 will not affect
significantly the quality of the human environment. Therefore, the
preparation of an EIS on the final action is not required under section
102(2)(c) of NEPA or CEQ's implementing regulations. This finding of no
significant impact is contained in the EA/RIR/IRFA for Amendment 49.
Nevertheless, NMFS is currently preparing a broader EIS on the
groundfish fisheries of the BSAI. This EIS will consider the impacts of
the current groundfish management system including the IR/IU program.
Comment 7: The IRFA was flawed in that several reasonable
traditional alternatives, currently used by NMFS and the State, were
summarily rejected without discussion by the Council and were not
analyzed in the IRFA. The Regulatory Flexibility Act (RFA) requires a
description of ``any significant alternatives . . . which minimize any
significant economic impact'' (5 U.S.C. 603(c)). The IRFA doesn't even
mention an industry proposal to exempt unmarketable undersize fish from
the proposed rule. Minimum size limits are currently used
[[Page 63883]]
in the halibut, crab, herring, and salmon fisheries. The Council has
refused to consider industry proposals to only require retention of
fish greater than 1.0 or 1.5 lb citing enforcement concerns. A minimum
size standard applied to the IR/IU program would make this an effective
program for reducing waste. The EA/RIR/IRFA itself bases its cost/
benefit calculations on a set of minimum marketable sizes. Amendment
49, as proposed, should not be approved by NMFS, but should, instead,
be returned to the Council for serious consideration of a viable
alternative to mitigate the impact on the small H&G catcher/processors.
The fact that, in effect, only one alternative was considered for
improved retention is a serious defect in the analysis, and the fact
that improved retention was considered a different option than improved
utilization are disturbing attempts at arguing that three options were
considered rather than one option and the status quo. Because the
option of using traditional size restrictions is available, this
alternative should be considered as viable for the purposes of analysis
even if the Council did not intend to select that alternative.
Response: A wide variety of alternatives was considered during
development of the IR/IU program. These alternatives were analyzed in a
series of Council documents beginning with an Implementation Issues
Analysis dated September 11, 1995. These documents were incorporated by
reference into the final EA/RIR/FRFA. The Council considered and
rejected minimum size limits for retention of IR/IU species because an
exemption allowing the discard of undersize fish would have diluted the
incentives for vessel operators to avoid the bycatch of juvenile fish
in the first place. See also response to comment 12.
The RFA as supplemented contains the required discussion of
alternative that will have less impact on small entities and the
reasons such alternatives were rejected.
Comment 8: Much of the ``full utilization'' achieved by shore-based
plants results from the production of fishmeal. The Environmental
Protection Agency (EPA) has stated that shoreside pollock fishmeal
processors lead the industry in terms of pollutant discharges. In
contrast, the EPA found that discharges of seafood wastes to deeper
unimpounded offshore waters by mobile at-sea processors do not create
the same kinds of problematic waste piles as do shore-based processors
(U.S. EPA, Response to Comments, Seafood Processors in Alaska, NPDES
General Permit No. AK-G52-0000 (1995)). An IR/IU program that allows
meal to meet the increased utilization standard creates a pollution
concern. Any IR/IU program should be designed to avoid or minimize
rather than increase the impact of processing wastes on the ocean
ecosystem.
Response: The potential environmental degradation resulting from
shore-based groundfish processing varies on a case-by-case basis
depending on the form of the discharged material and the location of
the discharge. For this reason, the EPA no longer regulates shore-based
surimi and fishmeal processors in the BSAI under the general permit
cited in the comment. In general, fishmeal processing transforms the
waste stream from solid to liquid form, which may have greater or
lesser impacts on the environment depending on the location of the
discharge. In many instances, liquid waste from fishmeal processing may
have less impact on the environment than solid waste because it
disperses more rapidly. As a result, the EPA now regulates each shore-
based surimi and fishmeal processor under a separate NPDES permit which
establishes limits on both solid and liquid waste discharges. Shore-
based processors must continue to operate under the terms of their
NPDES permits once the IR/IU program becomes effective.
Comment 9: If fishermen are required to retain and market juvenile,
diseased, or damaged fish, the reputation of Alaska seafood products on
the world market will be damaged.
Response: The final rule does not place restrictions on types of
products a vessel may produce from IR/IU species, nor does it restrict
the industry to production of products for human consumption. Small,
damaged, or diseased fish may be processed into fishmeal, fish oil,
minced fish, or other products not intended for human consumption.
Operations with the capacity to produce fishmeal will have little
difficulty processing fish that may not be fit for human consumption.
Operations without the capacity to produce fishmeal may find it more
difficult to handle such fish. However, NMFS does not expect processors
to deliberately undermine the marketability of their food grade
products by including fish that may be unsuitable for that purpose.
NMFS expects that most operators will comply with the IR/IU program by
developing a range of products and use below food grade fish to produce
products not intended for human consumption.
Comment 10: Amendment 49 should allow for the live release of
bycatch, as encouraged by the Magnuson-Stevens Act. Vessel operators
using longline, pot, and jig gear have the ability to carefully release
bycatch. While pollock and Pacific cod have closed swim bladders and
may not survive release, flatfish have open swim bladders and will
survive.
Response: Longline, pot, and jig vessels do not encounter bycatch
of rock sole and yellowfin sole in quantities sufficient to warrant a
special exemption for those gear types. NMFS catch statistics indicate
that longline, pot, and jig vessels operating in the BSAI encounter
only negligible amounts of rock sole and yellowfin sole. Longline
bycatch of these species averages 0.0 percent for rock sole and 0.2
percent for yellowfin sole as a percentage of total catch. Bycatch of
these species by pot and jig vessels is virtually unreported.
Consequently, a full retention requirement for rock sole and yellowfin
sole is expected to have a negligible effect on vessels using longline,
pot, and jig gear.
Comment 11: The final rule should contain exemptions for diseased,
contaminated, parasite-ridden, or damaged fish. Contaminated, diseased,
parasite-ridden, or damaged fish are inevitably encountered in the
course of fishing and processing activities. Retention of such fish is
in conflict with Food and Drug Administration (FDA) Hazard Analysis
Critical Control Point (HACCP) requirements. In fact, the HACCP plans
drafted by many companies actually require the discard of fillet
products with large amounts of parasites in them.
Response: NMFS recognizes that some fish may enter a processing
facility that may be below food grade (see response to comment 9).
However, the final rule does not limit the type of products a processor
may produce from its retained catch, nor does it establish a minimum
recovery rate for each fish. The 15-percent minimum utilization rate
requirement in the final rule applies to a vessel's aggregate
production from each IR/IU species during a fishing trip, rather than
each individual fish. Many processors in the BSAI currently utilize
damaged and parasite ridden fish in a variety of products such as
fishmeal, fish oil, minced fish, and bait that are not intended for
human consumption.
Federal HACCP regulations require processors to address food safety
hazards in their HACCP plans. However, nothing in the HACCP regulations
requires processors to discard fish that are below food grade. Such
fish may be utilized in a variety of non-food products. Seafood
processors that currently rely on discarding of whole fish to comply
with
[[Page 63884]]
HACCP requirements will need to modify their HACCP plans to comply with
the provisions of the IR/IU program.
The Council and NMFS considered and rejected various exemptions for
damaged and parasite-ridden fish for a variety of reasons. An exemption
allowing discards of fish that are damaged in the course of handling
and processing could undermine the effectiveness of the IR/IU program
and render it unenforceable. NMFS believes that such an exemption would
provide an incentive for processors to deliberately damage quantities
of IR/IU species that they would prefer not to retain and process for
economic reasons.
NMFS does not have statistics on the percentage of fish that are
rendered unsuitable for food products as a result of parasites. Various
parasites are commonly encountered in BSAI groundfish catches, and
processors have developed various techniques for parasite removal
during processing. An exemption that would allow discarding of fish
with parasites could undermine the effectiveness of the IR/IU program
and allow wholesale discards of marketable fish because some form of
parasite is likely to be encountered in most pollock and Pacific cod.
The Council and NMFS recognize that retention of damaged fish may
pose a problem for certain sectors of the industry. Processors with the
capacity to produce fishmeal are unlikely to be affected because
damaged and parasite-ridden fish are suitable for fishmeal processing.
Processors without fishmeal plants may find it more difficult to
produce marketable products from damaged fish. To address these
concerns, the Council voted to establish an IR/IU implementation
committee composed of representatives from industry, conservation
groups, and management agencies. This IR/IU implementation committee
will be charged with examining problems that surface during
implementation of the IR/IU program and providing the Council and NMFS
with recommendations for changes and modifications to the program that
may prove necessary. NMFS intends to work closely with the Council and
industry during implementation of Amendment 49 to further refine
aspects of the program as problems become apparent during
implementation.
Comment 12: The proposed IR/IU program should contain exemptions
for undersize fish. Most fish processing equipment is limited to
processing fish within certain size ranges. For technological reasons,
some processors may be unable to process fish that fall outside these
size parameters. A minimum size standard would increase the net
economic benefits to the nation as a result of the IR/IU program by not
imposing costs on industry to process unmarketable undersize fish.
Response: Processors with fishmeal plants will have no difficulty
processing undersize or juvenile fish. However, NMFS recognizes that
processors without fishmeal plants may be forced to process undersize
fish into products of little or no value, such as whole frozen fish.
During early development of the IR/IU program, the Council considered
and rejected exemptions for juvenile fish because an exemption allowing
the discard of undersize fish would not have provided vessel operators
an incentive to avoid the bycatch of juvenile fish in the first place.
The intent of the IR/IU program is to provide industry with incentives
to develop more selective fishing techniques, and that objective is
also underscored in the Magnuson-Stevens Act. To that end, NMFS is
currently sponsoring research into more selective fishing gear such as
larger mesh codends and trawl escape panels, and believes that fishing
selectivity will improve as vessel operators endeavor to avoid bycatch
of juvenile fish. To the extent that vessel operators are able to avoid
the capture of juvenile fish in the first place, the impacts of the
full retention requirement will be reduced.
Comment 13: The IR/IU program should not require the retention and
utilization of previously-caught fish which may be brought on board a
vessel through fishing or retrieval of lost gear. For example, last
year a vessel retrieved a codend that had been lost in a pollock
fishery 4 months earlier. The codend was still full of pollock
(approximately 80 mt). The fish had begun to putrefy and the gas caused
the codend to float to the surface. The vessel that retrieved the
codend had to bring the fish on board to dump the codend. According to
the proposed rule, that vessel would have been required to retain all
pollock brought on board the vessel without distinction as to their
condition or the circumstances involved. During the yellowfin sole
fishery, dead yellowfin sole commonly are caught that had been
previously discarded by other vessels. Under the IR/IU program, discard
of IR/IU species may be required for a vessel to comply with directed
fishing closures. Vessels should not be required to retain and utilize
dead and putrefying fish that were previously caught and discarded by
other vessels.
Response: NMFS agrees. The final rule has been modified to allow
for the discard of previously caught fish. Vessel operators should not
log previously caught fish as part of their round-weight catch of an
IR/IU species. NMFS daily fishing logbooks and daily cumulative
production logbooks already provide discard code 97 for previously
discarded (decomposed) fish taken with trawl gear in current fishing
efforts. This code also should be used when logging discards of
previously caught IR/IU species.
Comment 14: Since the purpose of the IR/IU program is to reduce
waste in the groundfish fishery, NMFS should review the advisability of
maintaining the current restrictions on the amount of pollock roe a
vessel is allowed to have on board at any point in time. Those
restrictions were adopted as an indirect method of prohibiting the
practice of roe-stripping. Although well intended, and supported by
industry at the time they were initially imposed, the current
regulations have actually resulted in the discarding of roe during time
periods of peak roe recovery. Such a result is incongruous in light of
current efforts to reduce waste in the fishery--especially in view of
the discarding restrictions incorporated in Amendment 49. NMFS should
reconsider the need for the roe retention limits once IR/IU regulations
go into effect and, if possible, increase the amount of retainable roe
so as to avoid situations where vessels are required to discard the
most valuable of all products produced by the pollock fishery.
Response: NMFS agrees. The current regulations governing retention
of pollock roe were adopted by NMFS in 1990 to implement Amendment 13/
19 to the groundfish fishery management plans for the BSAI and GOA.
Amendment 13 to the BSAI FMP states:
Roe-stripping is prohibited, and the Regional Director is
authorized to issue regulations to limit this practice to the
maximum extent practicable. It is the Council's policy that the
pollock harvest shall be utilized to the maximum extent possible for
human consumption.
Among the options considered by the Council during analysis of
Amendments 13/19 was an option that would have required full
utilization of pollock, a more restrictive option than the prohibition
on roe stripping that was adopted by the Council at that time. The IR/
IU program established by Amendment 49 in effect implements the more
restrictive roe-stripping prohibition originally rejected by the
Council for Amendment 13. Consequently, previously adopted regulations
that limit roe-stripping through maximum retainable percentages may be
redundant and unnecessary. For that reason, NMFS
[[Page 63885]]
intends to work with the Council and the Council's IR/IU implementation
committee to determine if existing limits on roe retention continue to
serve a purpose after implementation of the IR/IU program.
Comment 15: The IR/IU program should contain a provision to allow
trawlers to bleed codends when necessary for vessel safety. On occasion
a vessel may accidentally harvest more fish than can be safely brought
on board. Vessel operators should not be faced with either bringing the
fish on board and risking the safety of the entire crew and vessel, or
violating IR/IU regulations by discarding the portion of the catch that
cannot be brought on board safely.
Response: The Council's IR/IU industry committee considered and
rejected proposals to allow codend bleeding. The IR/IU committee
believed that this practice should stop, and that a prohibition on
bleeding codends would provide an incentive for fishermen to fish in a
more cautious manner when their holds are near capacity. In addition,
many catcher vessels have the capacity to carry excess catch on deck
safely, although fish retained in such a manner (without refrigeration)
may not be desired by the processor to which they are delivering. NMFS
Enforcement and the U.S. Coast Guard generally are not in a position to
evaluate whether a particular instance of discarding was motivated by
legitimate safety concerns or by economic reasons. Nevertheless, should
a vessel operator believe it necessary for the safety of the vessel to
bleed a codend, the amount of discards should be entered into the
vessel's daily fishing log along with a description of the extenuating
circumstances. NMFS will review such instances on a case-by-case basis
with consideration given to the extent of the violation and possible
mitigating circumstances.
Comment 16: The IR/IU program should provide a buffer between
maximum retainable bycatch (MRB) percentages under the directed fishing
standards and the IR/IU minimum retention requirements. Under the
proposed rule, the combination of these two standards results in a
single point (20 percent for pollock and Pacific cod and 35 percent for
rock sole and yellowfin sole) that a vessel operator must achieve to
comply with both standards simultaneously. Without onboard scales, no
catcher vessel can retain precisely 20 percent of an IR/IU species.
This is true for both vessels that partially sort their catch on board
and for those that pump fish directly into refrigerated seawater. This
situation is an untenable position for a catcher vessel and differs
greatly from the situation for a catcher/processor, which may meet both
standards by monitoring the number of cases of product on board and
maintaining appropriate ratios. If MRB requirements take precedence
over IR/IU requirements then the proposed rule should lower the
retention standard when an IR/IU species is closed to directed fishing
to provide a range of 15 to 20 percent for pollock and Pacific cod and
25 to 35 percent for rock sole and yellowfin sole within which catcher
vessels could retain or discard IR/IU species at their option.
Response: The Council, through its IR/IU industry committee,
considered and rejected a proposal to provide a buffer between IR/IU
retention requirements and MRB amounts. The IR/IU industry committee
recommended, instead, that this issue be reexamined once the program is
underway and that possible solutions could be developed at that time if
necessary.
When an IR/IU species is closed to directed fishing, the IR/IU
program does not require a vessel operator to retain exactly the MRB
amount for that species. Rather, the program simply requires the
retention of all catch of that species up to the MRB amount in effect
for that species. A vessel operator who maintains a bycatch rate below
the MRB percentage in effect for an IR/IU species will avoid the
difficult scenario described in the comment. The avoidance of bycatch
is an underlying objective of the Magnuson-Stevens Act and one
objective of the IR/IU program is to encourage vessel operators to
simply avoid the harvest of IR/IU species when those species are closed
to directed fishing. To that end, NMFS is actively promoting the
development of more selective gear technologies and is assisting
industry efforts to identify and avoid areas with high bycatch rates.
NMFS believes that attempts should first be made to avoid excessive
bycatch of IR/IU species closed to directed fishing before retention
standards are relaxed to accommodate discards of such bycatch.
Comment 17: The 15-percent minimum utilization rate standard in the
proposed rule depends on accurate estimates of a vessel's total catch.
We are concerned that measurement error by observers in the calculation
of total catch of each IR/IU species may make a vessel accountable for
processing more fish than it actually caught. Due to the vagaries of
species composition sampling, an observer's estimate of total catch of
an IR/IU species during a specific haul may differ from the vessel's
actual catch by a significant percentage. Based on our experience with
the accuracy of species composition sampling, this ``phantom fish''
problem could occur to a significant degree.
Response: NMFS recognizes the problems associated with calculating
the total catch of each IR/IU species on a haul-by-haul basis. However,
the IR/IU program does not depend on observer estimates of total catch
of each IR/IU species for monitoring and enforcement of the 15-percent
minimum utilization rate. Instead, each processor is required to log
its total catch weight of each IR/IU species on a haul-by-haul basis.
NMFS logbooks will be revised to accommodate collection of this data.
When verifying compliance with the 15-percent minimum utilization rate,
a catcher/processor's logged round-weight catch of an IR/IU species
will be compared against the weight of products produced from that IR/
IU species.
At this point, NMFS has not established specific guidelines or
procedures for measurement of the round-weight catch of IR/IU species
on board vessels. Vessel operators are free to measure their round-
weight catch of each IR/IU species in the manner they determine to be
most appropriate to their circumstances. When observers are present,
vessel operators are free to use the observer's estimate of total
catch, or they may independently measure the round-weight catch of each
IR/IU species.
NMFS chose not to base monitoring and enforcement of the 15-percent
utilization standard on observer estimates of round-weight catch
because not all vessels have 100-percent observer coverage, and
observers, when present, may not sample every haul. If observer
estimates were used to monitor compliance with the IR/IU program, then
vessels without observer coverage would, in effect, be exempt from the
program. Nevertheless, NMFS may use observer data as well as any
additional information that may be available to verify the accuracy of
a vessel's logged round-weight catch of IR/IU species. The deliberate
under-logging of round-weight catch to evade minimum utilization
requirements is a violation of NMFS recordkeeping and reporting
requirements and would be subject to enforcement action.
Comment 18: As indicated in the EA/RIR/IRFA, implementation of the
IR/IU program requires parallel State of Alaska (State) regulations for
onshore processors. In the absence of parallel State regulations,
catcher vessels will be placed in an untenable position if onshore
processors refuse to accept their
[[Page 63886]]
catch and Federal regulations prohibit them from discarding at sea.
Therefore, implementation of the IR/IU program should be delayed until
State IR/IU regulations are in place.
Response: The State is currently developing a parallel IR/IU
program that would establish retention and utilization requirements for
onshore processors, and require onshore processors to accept deliveries
of IR/IU species. The Alaska Department of Fish and Game (ADF&G) has
indicated that under existing State statutes that prohibit roe
stripping and waste of pollock, the State has authority to implement
IR/IU regulations to govern onshore processing of pollock. ADF&G has
indicated that the State is proceeding with implementation of IR/IU
regulations to govern onshore processing of pollock that would be
effective January 3, 1998. However, ADF&G has indicated that parallel
IR/IU regulations to govern onshore processing of Pacific cod may not
be in place until mid-1998 because a statutory change is necessary
before the State can regulate onshore processing of Pacific cod.
At the September 1997 Council meeting, NMFS met with
representatives for catcher vessel operators and concluded that
parallel State regulations for pollock will address the concerns of the
catcher vessel fleet on an interim basis provided the State also
proceeds with parallel State regulations for Pacific cod. Catcher
vessel operators are most concerned about being able to deliver pollock
bycatch to processors that have not traditionally processed pollock in
the past. Catcher vessel operators indicate that they are much less
concerned about finding onshore markets for Pacific cod.
Comment 19: The EA/RIR/IRFA clearly concludes that adoption of
parallel IR/IU regulations by the State is critical to the success of
the program. The State, acting through the Commissioner of Fish and
Game, recently argued in Alaska Superior Court that regulations
allowing the roe stripping of salmon and discard of 100 percent of the
salmon carcasses were legal under the Alaska anti-waste statute
(Callaghan v. Alaska, No. 3AN-96-8963 Civ., Slip Op. (3d Super. Ct.
Alaska July 14, 1997)). In Callaghan, the State Attorney General
justified the discard of salmon citing the Commissioner of Fish and
Game's finding that harvesters ``might not harvest these salmon because
of lack of markets.'' In finding for the State, the Court relied in
part on a finding by the Commissioner of Fish and Game that ``catching
and processing the entire fish would result in a financial loss'' (Id.
at 8). In short, the State prevailed arguing that (1) it is not waste
to discard unmarketable fish, and (2) ADF&G and the State Attorney
General are justified in not enforcing the State of Alaska anti-waste
laws. We believe, therefore, that NMFS cannot reasonably conclude that
the State of Alaska will implement or enforce parallel IR/IU
regulations for onshore processors. Without implementation and
enforcement of parallel State regulations, the IR/IU program should be
disapproved.
Response: See response to comment 18. Throughout Council
development of the IR/IU program, the State has expressed its intent to
promulgate parallel IR/IU regulations for onshore processors. The State
was a principal proponent of the IR/IU program throughout the Council
process, and NMFS has no reason to believe that the State will fail to
follow through with its commitment to implement parallel IR/IU
regulations for onshore processors.
Comment 20: NMFS' ability to determine if the proposed IR/IU
program satisfies the law and meets the intent of the Council depends
on its ability to monitor and measure the extent to which vessels avoid
bycatch. However, the proposed program includes no such monitoring
mechanism. In fact, throughout the proposed amendment, and also the
proposed rule, limitations and difficulties associated with monitoring,
enforcement, and compliance with the program are prominent. There is no
explicit discussion of a monitoring system geared to assess the
efficacy of the program. Further, at the June 1997 Council meeting,
representatives of NMFS recognized that the program does not include
suitable methods by which to measure its success in meeting stated
intent or satisfying legal requirements.
This lack of a monitoring program is directly counter to the draft
regulations NMFS will soon propose to help Councils implement bycatch
reduction requirements. The proposed revisions to the guidelines for
Magnuson-Stevens Act national standards include the following section
for bycatch reduction requirements:
Implementation and monitor selected [bycatch reduction]
management measures. Effects of implemented measures should be
evaluated routinely. Monitoring systems should be established prior
to fishing under the selected management measures. Where applicable,
implementation plans should be developed and coordinated with
industry and other concerned organizations to identify opportunities
for cooperative data collection, coordinating data management for
cost efficiency and avoidance of duplicate effort.
Response: Monitoring and evaluation of the IR/IU program will be
accomplished primarily through the use of existing sources of data on
the catch, retention, and utilization of IR/IU species in the BSAI. The
groundfish fisheries of the BSAI are among the most extensively
monitored fisheries in the United States and are subject to the most
extensive observer coverage requirements of any fishery in the United
States. NMFS's groundfish monitoring program gathers data from a
variety of sources including observer reports, industry-submitted
weekly production reports, NMFS daily fishing logbooks, and ADF&G fish
tickets. These data sources will enable NMFS to assess the
effectiveness of the IR/IU program on a fleet-wide basis. Where
necessary, existing data collection programs are being adjusted to
accommodate the collection of data necessary for monitoring the IR/IU
program. For example, NMFS catcher vessel daily fishing logbook,
catcher/processor daily fishing logbook and mothership cumulative
production logbooks are being revised to accommodate the collection of
round-weight catch data for IR/IU species on a haul-by-haul basis.
Changes From the Proposed Rule
Four changes were made from the proposed rule in response to
comments:
1. A provision was added at Sec. 679.27(h) to allow for the discard
of previously caught fish.
2. The prohibition on discard of products from IR/IU species at
Sec. 679.27(e) was revised to allow the discard of products when
necessary to comply with a directed fishing closure.
3. The definition of ``fishing trip'' at Sec. 679.2 was revised to
specify that it applies to the IR/IU program as well as to directed
fishing closures.
4. The proposed rule contained separate utilization requirements
based on a fishing trip for catcher/processors and a reporting week for
motherships. In the final rule, these were combined into a single
utilization standard based on a fishing trip for both catcher/
processors and motherships.
Summary of the Final Rule and Guide to Compliance
The following section in question-and-answer format describes and
summarizes the requirements of the final rule and is intended to serve
as a compliance guide for vessel owners and operators.
[[Page 63887]]
Who Must Comply With IR/IU Regulations?
If you own or operate a vessel fishing for groundfish in the BSAI
or processing groundfish harvested in the BSAI, you must comply with
the IR/IU regulations regardless of your vessel's size, gear type, or
target fishery. Because the Magnuson-Stevens Act does not authorize
NMFS to regulate onshore processing of fish, these requirements do not
apply to onshore processors. Parallel regulations to extend IR/IU
requirements to onshore processors will be issued by the State of
Alaska.
Which Species Must Be Retained?
The IR/IU program defines four groundfish species as IR/IU species:
pollock, Pacific cod, rock sole, and yellowfin sole. Retention and
utilization requirements apply to pollock and Pacific cod beginning
January 3, 1998. The requirements will apply to rock sole and yellowfin
sole beginning January 1, 2003. The purpose of the 5-year delay for
rock sole and yellowfin sole is to provide industry with sufficient
time to develop more selective fishing techniques and/or markets for
these fish.
What Are the Retention Requirements for Catcher Vessels When
Directed Fishing Is Open?
The retention requirements for all vessels are set out in table
format at Sec. 679.27(c)(2). If you own or operate a catcher vessel,
and directed fishing for an IR/IU species is open, you must retain all
fish of that species brought on board your vessel until the fish are
lawfully transferred or sold to an authorized party such as a processor
operating with a Federal processor permit. This requirement applies to
all IR/IU species you have caught as well as all IR/IU species you have
received via transfer from another vessel.
What Are the Retention Requirements for Catcher Vessels When
Directed Fishing Is Closed?
If you own or operate a catcher vessel and an IR/IU species is
closed to directed fishing, you must retain all fish of that species up
to the MRB amount in effect for that species. If your catch of an IR/IU
species exceeds the MRB amount in effect for that species, your catch
in excess of the MRB amount must be discarded. Because the MRB amount
for a vessel is a running total based on the retained catch of species
open to directed fishing, you may find it necessary to discard excess
bycatch of an IR/IU species during the early part of a fishing trip and
may not subsequently encounter any additional bycatch of that IR/IU
species during the fishing trip. In such an instance, you would be in
compliance with the IR/IU program even though the percentage of that
IR/IU species in your delivery may be below the MRB and you discarded
catch of that species earlier in the fishing trip.
The simplest way to simultaneously comply with directed fishing
closures and the IR/IU retention requirements is to avoid excessive
bycatch of IR/IU species that are closed to directed fishing. If you
catch less than the MRB percentage for an IR/IU species, you simply
retain your entire catch of that species and avoid the difficulty
associated with calculating how much fish to discard. While NMFS
encourages vessel operators to avoid bycatch of IR/IU species that are
closed to directed fishing, at times avoidance may be difficult. Vessel
operators who frequently exceed the MRB amount in effect for an IR/IU
species are encouraged to develop appropriate catch measurement
techniques, such as measured fish-hold volumes or on-board scales. At
this point, NMFS has not established standards for measurement of catch
on catcher vessels and intends to seek input from industry on
appropriate and cost-effective measurement techniques.
What Are the Retention Requirements for Catcher/Processors When
Directed Fishing Is Open?
If you own or operate a catcher/processor and directed fishing for
an IR/IU species is open, you must retain a primary product from all
fish of that species brought on board your vessel until such products
are lawfully transferred to an authorized party. This includes all fish
you have caught as well as all fish you have received via transfer from
another vessel. You may use any primary product, except roe, to meet
this minimum retention requirement. The IR/IU program does not limit or
define the types of primary products that must be produced from each
IR/IU species, provided that all primary and ancillary products are
logged in your daily cumulative production logbook (DCPL). In addition,
whole fish may be considered a product for the purpose of this program
provided that they are logged as whole fish in your DCPL.
What Are the Retention Requirements for Catcher/Processors When
Directed Fishing Is Closed?
If you own or operate a catcher/processor and an IR/IU species is
closed to directed fishing, you must retain a primary product from all
fish of that species brought on board your vessel up to the point that
the round-weight equivalent of primary products from that species
equals the MRB amount for that species. The simplest way to meet this
requirement is to avoid bycatch of an IR/IU species that is closed to
directed fishing so that your production from that species does not
approach the MRB percentage in effect for that species.
To monitor your vessel's compliance, you must track, on a running
basis, both the round-weight equivalent of primary products from your
basis species, i.e., those species open to directed fishing, and the
round-weight equivalent of your primary products from the IR/IU species
closed to directed fishing. As long as the round-weight equivalent of
your primary products from the IR/IU species closed to directed fishing
is at or below the MRB amount in effect for that species, you must
retain a primary product from all catch of that species. If during the
course of a fishing trip you find that you have exceeded the MRB amount
for an IR/IU species, you are permitted to discard product from that
species, if necessary, to bring your operation into compliance with the
directed fishing closure. This is the only instance in which you are
permitted to discard products from IR/IU species.
What Is the Definition of a Fishing Trip?
The definition of a fishing trip used to monitor compliance with
the IR/IU program is the same definition of a fishing trip currently
used to monitor compliance with directed fishing closures. You are
engaged in a fishing trip from the time you begin or resume harvesting,
receiving, or processing groundfish in an area until: (1) You offload
or transfer all fish or fish product from your vessel; (2) you enter or
leave an area where a different directed fishing prohibition applies;
or (3) you come to the end of a weekly reporting period, whichever
comes first. This definition of fishing trip applies to catcher
vessels, catcher processors, and motherships.
What Are the Retention Requirements for Motherships?
The retention requirements for motherships and catcher/processors
are identical. No distinction is made between IR/IU species that you
have caught and IR/IU species you have received through transfer or
delivery from another vessel.
Under What Circumstances May IR/IU Species Be Released Before They
Are Brought on Board?
The intentional discard of IR/IU species prior to bringing them on
board
[[Page 63888]]
your vessel, such as bleeding codends or shaking fish off longlines, is
prohibited. However, NMFS recognizes that some escapement of fish from
fishing gear does occur in the course of fishing operations. Therefore,
incidental escapement of IR/IU species, such as fish squeezing through
mesh or accidently dropping off longlines, will not be considered a
violation unless the escapement is intentionally caused by action of
the vessel operator or crew.
What if I Must Bleed a Codend for the Safety of My Vessel?
The IR/IU program contains no exemption to allow the bleeding of
codends for safety reasons. NMFS urges vessel operators to fish in a
cautious manner when their fish holds are near capacity to avoid
catching more fish than can be retained safely. If you believe that
circumstances require you to bleed a codend or otherwise discard IR/IU
species for the safety of your vessel, you must log the amount of
discard in your daily fishing logbook (DFL) and describe the
circumstances surrounding the incident. Failure to log such an incident
is a violation of NMFS recordkeeping and reporting requirements. NMFS
will review such incidents on a case-by-case basis with consideration
given to the extent of the violation and possible mitigating
circumstances.
Must I Retain Bycatch of Decomposed Fish Previously Discarded by
Other Operations?
You may discard any bycatch of previously discarded fish. When you
encounter such fish, they should not be recorded in your logbook as
part of your round-weight catch of an IR/IU species. Discards of
previously discarded fish should be logged using discard code 97, which
is for discards of previously discarded, i.e., decomposed, fish taken
with trawl gear in current fishing efforts.
May I Discard Any Products Produced From IR/IU Species?
Discard of retained products from an IR/IU species is prohibited
unless discarding of product is necessary to comply with a directed
fishing closure.
May I Discard Fish or Products Transferred From Another Vessel?
The retention requirements of the IR/IU program apply to all fish
brought on board your vessel, regardless of whether they were harvested
by your vessel or transferred from another vessel. You are prohibited
from discarding any products produced from IR/IU species that were
transferred to you from another vessel.
May I Use IR/IU Species as Bait?
IR/IU species may be used as bait provided the bait is physically
attached to authorized fishing gear when deployed. Dumping IR/IU
species as loose bait (e.g., chumming) is prohibited.
How Is the 15-Percent Minimum Utilization Rate Calculated When
Directed Fishing Is Open?
If directed fishing for an IR/IU species is open, your total weight
of retained or lawfully transferred products produced from IR/IU
species harvested or received by your vessel during a fishing trip must
equal or exceed 15-percent of your round-weight catch of that species
during the same fishing trip.
How Is the 15-Percent Minimum Utilization Rate Calculated When
Directed Fishing Is Closed?
When directed fishing for an IR/IU species is closed, your total
weight of retained or lawfully transferred products produced from IR/IU
species harvested or received by your vessel during a fishing trip must
equal or exceed either 15-percent of the MRB amount in effect for that
species or 15-percent of the round-weight catch of that species,
whichever is lower. You are only required to utilize those fish that
you are required to retain under the retention requirements of the IR/
IU program. For example, if you have minimal bycatch of an IR/IU
species closed to directed fishing (below the MRB amount), your total
weight of retained products must equal or exceed 15-percent of your
round-weight catch of that species. If your bycatch of an IR/IU species
closed to directed fishing is high enough that you are forced to
discard a portion of your catch to avoid exceeding the MRB amount, the
15-percent utilization rate would be applied against the MRB amount and
not against your total catch of that species prior to discarding. You
must simultaneously comply with both the retention and utilization
requirements of the IR/IU program. Compliance with one standard in the
absence of the other would be a violation.
How Do Utilization Requirements Differ Between Catcher/Processors
and Motherships?
The only difference between the utilization requirements for
catcher/processors and motherships is that the 15-percent minimum
utilization rate is applied during the course of a fishing trip for
catcher/processors and during the course of a reporting week for
motherships. For the purpose of the IR/IU program, NMFS has defined the
term ``fishing trip'' in the same manner as it is defined for the
purpose of monitoring directed fishing closures.
How Do I Calculate My Round-Weight Catch of IR/IU Species?
If you operate a catcher vessel or catcher processor, you must
record the round-weight catch of all IR/IU species on a haul-by-haul
basis. If you operate a mothership, you must record the round weight of
all IR/IU species received on a delivery-by-delivery basis. If you have
an observer aboard your vessel, you are free to use the observer's
estimates of round-weight catch of each IR/IU species, but you are not
required to do so. At this point, NMFS has not established specific
guidelines or procedures for measurement of the round-weight catch of
IR/IU species on board vessels. Vessel operators are free to measure
their round-weight catch of each IR/IU species in the manner they
determine to be most appropriate to their circumstances. However, NMFS
may verify the accuracy of a vessel's reported round-weight catch of
IR/IU species by comparison to observer data and by any other means
that may be available. Deliberate under-logging of the round-weight
catch of an IR/IU species is a violation of NMFS recordkeeping and
reporting requirements and is subject to enforcement action.
What Changes to Recordkeeping and Reporting Requirements Are
Included in the IR/IU Program?
This final rule includes changes to existing recordkeeping
requirements to aid the monitoring and enforcement of the IR/IU
program. Beginning January 3, 1998, all catcher vessels and catcher/
processors that are currently required to maintain NMFS logbooks are
required to log the round-weight catch of pollock and Pacific cod in
the NMFS catcher vessel DFL or catcher/processor DCPL on a haul-by-haul
or set-by-set basis. Motherships are required to log the receipt round
weight of pollock and Pacific cod in the mothership DCPL on a delivery-
by-delivery basis. Beginning January 1, 2003, this requirement will
extend to rock sole and yellowfin sole. These changes are necessary to
provide vessel operators and enforcement agents with round-weight
information for each IR/IU species in order to monitor compliance with
the IR/IU program.
Additional Technical Changes to Existing Regulations
The definition of ``fishing trip'' at Sec. 679.2 is revised to
specify that it applies to the IR/IU program as well as to directed
fishing closures. This change
[[Page 63889]]
is necessary to clarify the meaning of the term ``fishing trip'' as it
applies to the IR/IU program.
The definition of ``round weight or round-weight equivalent'' at
Sec. 679.2 is revised by restricting the definition to ``round-weight
equivalent''. The term ``round weight'' is already defined by NMFS in
regulations appearing at 50 CFR part 600 and does not need to be re-
defined in regulations at Sec. 679.2.
The prohibition on discard of pollock product at
Sec. 679.20(g)(5)(ii) is revised to allow the discard of product when
necessary to comply with a directed fishing closure. This change is
necessary to prevent a conflict with the regulations at Sec. 679.20(i)
that implement the IR/IU program.
Regulations at Sec. 679.50 (c) and (d), which specify observer
coverage requirements for motherships based on ``round weight or round-
weight equivalent'' of groundfish processed, are revised by removing
the term ``round weight.'' Observer coverage requirements for
motherships during a calendar month would be based only on the round-
weight equivalent of groundfish processed. This change is necessary
because the terms ``round weight'' and ``round-weight equivalent''
would no longer be synonymous under the final rule.
Classification
The Administrator, Alaska Region, NMFS, determined that Amendment
49 is necessary for the conservation and management of the groundfish
fishery of the BSAI and that it is consistent with the Magnuson-Stevens
Act and other applicable laws.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act. The collection of this information has
been approved by the Office of Management and Budget, OMB Control
Number 0648-0213.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Public comment is sought regarding: Whether this collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information has practical utility;
the accuracy of the burden estimate; ways to enhance the quality,
utility, and clarity of the information to be collected; and ways to
minimize the burden of the collection of information, including through
the use of automated collection techniques or other forms of
information technology.
An RIR was prepared for this final rule that describes the
management background, the purpose and need for action, the management
action alternatives, and the social impacts of the alternatives. The
RIR also estimates the total number of small entities affected by this
action and analyzes the economic impact on those small entities.
An FRFA has been prepared for this action and consists of the EA/
RIR/FRFA and the preambles to the proposed and final rules implementing
this action. The analysis examines the economic effects of this final
rule by fishery and gear type and makes the following conclusions: (1)
The economic effects of the final rule on vessels using longline, jig,
and pot gear would not be significant; (2) the economic effects of the
final rule on trawl catcher vessels and shore-based processors would
not be significant; and (3) the economic effects of the final rule on
trawl catcher/processor operations may or may not be significant
depending upon the fishery as well as the size and processing capacity
of the vessel in question.
Under the category of trawl catcher/processors, the economic
effects on vessels participating in the pollock, sablefish, Greenland
turbot, rockfish, and Atka mackerel fisheries would not be significant.
However, the economic effects on vessels participating in the Pacific
cod, rock sole, yellowfin sole, flathead sole and ``other'' flatfish
fishery would be significant. The reason is that the bycatch of IR/IU
species in these fisheries is substantial. The quantity of additional
retained catch that operators in these fisheries would be required to
handle under the final rule would impose significant operational costs
on these fisheries, taken as a whole. This is especially true for
products for which markets are limited or undeveloped (e.g., small
Pacific cod, male rock sole, and H&G pollock). Current prices for these
products may be insufficient to cover the costs of their production.
In general, the impacts on any individual factory trawler operation
would vary inversely with the size and configuration of the vessel,
hold capacity, processing capability, markets and market access, as
well as the specific composition and share of the total catch of the
four IR/IU species. The burden would tend to fall most heavily upon the
smallest, least diversified operations among the current fleet. In
addition, the groundfish vessel moratorium, proposed license limitation
program, and U.S. Coast Guard load-line requirements severely limit
reconstruction to increase vessel size and/or processing capacity.
These restrictions are expected to further limit the ability of smaller
catcher/processors to adapt to the proposed IR/IU program.
NMFS data indicate that in 1995, 44 at-sea processors participated
in the BSAI Pacific cod trawl fishery (4 motherships and 40 catcher/
processors); 38 at-sea processors participated in the BSAI rock sole
fishery (2 motherships and 36 catcher/processors); 48 at-sea processors
participated in the BSAI yellowfin sole fishery (4 motherships and 44
catcher/processors); 19 catcher/processors participated in the flathead
sole fishery; and 23 at-sea processors participated in the ``other''
flatfish fishery (1 mothership and 22 catcher/processors).
In selecting its preferred alternative for Amendment 49, the
Council minimized the economic impact of the IR/IU program on small
entities in a variety of ways. First, the Council adopted 5-year delay
in the effective date for rock sole and yellowfin sole to provide
industry with sufficient time to develop more selective fishing
techniques and/or markets for fish that are currently being discarded.
Second, the Council rejected utilization alternatives that would have
limited product forms or placed limits on fishmeal production, in order
to allow industry more flexibility in complying with the utilization
requirements of the IR/IU program. Finally, the Council rejected
monitoring alternatives that would have imposed substantial costs in
the form of increased observer coverage requirements or required a full
time compliance monitor aboard all vessels. For reasons set forth in
this preamble above, alternatives that would have further minimized
economic impacts on small entities were rejected.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
The Administrator, Alaska Region, NMFS determined that fishing
activities conducted under this rule would not affect endangered and
threatened species listed or critical habitat designated pursuant to
the Endangered Species Act in any manner not considered in prior
consultations on the groundfish fisheries of the BSAI.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
[[Page 63890]]
Dated: November 26, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR 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, the definitions of ``IR/IU'' and ``IR/IU
species'' are added in alphabetical order, paragraph (1) in the
definition of ``Fishing trip'' is revised and the definition and
heading of ``Round weight or round-weight equivalent'' are revised to
read as follows:
Sec. 679.2 Definitions.
* * * * *
Fishing trip means: (1) With respect to groundfish directed fishing
closures or the IR/IU program, an operator of a vessel is engaged in a
fishing trip from the time the harvesting, receiving, or processing of
groundfish is begun or resumed in an area until:
(i) The effective date of a notification prohibiting directed
fishing in the same area under Sec. 679.20 or Sec. 679.21;
(ii) The offload or transfer of all fish or fish product from that
vessel;
(iii) The vessel enters or leaves an area where a different
directed fishing prohibition applies; or
(iv) The end of a weekly reporting period, whichever comes first.
* * * * *
IR/IU means the improved retention/improved utilization program set
out at Sec. 679.27.
IR/IU species means any groundfish species that is regulated by a
retention or utilization requirement set out at Sec. 679.27.
* * * * *
Round-weight equivalent means the weight of groundfish calculated
by dividing the weight of the primary product made from that groundfish
by the PRR for that primary product as listed in Table 3 of this part,
or, if not listed, the weight of groundfish calculated by dividing the
weight of a primary product by the standard PRR as determined using the
best available evidence on a case-by-case basis.
* * * * *
3. In Sec. 679.5, paragraphs (c)(3)(ii)(G) and (e)(2)(ii)(F) are
added to read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(c) * * *
(3) * * *
(ii) * * *
(G) The round-weight catch of pollock and Pacific cod.
* * * * *
(e) * * *
(2) * * *
(ii) * * *
(F) The receipt round weight of pollock and Pacific cod.
* * * * *
4. In Sec. 679.20, paragraph (g)(5)(ii) is revised to read as
follows:
Sec. 679.20 General Limitations.
* * * * *
(g) * * *
(5) * * *
(ii) No discard of processed product. Any pollock product that has
been processed may not be discarded at sea unless such discarding is
necessary to meet other requirements of this part.
* * * * *
5. Section 679.27 is added to subpart B to read as follows:
Sec. 679.27 Improved Retention/Improved Utilization Program.
(a) Applicability. The owner or operator of a vessel that is
required to obtain a Federal fisheries or processor permit under
Sec. 679.4 must comply with the IR/IU program set out in this section
while fishing for groundfish in the BSAI, fishing for groundfish in
waters of the State of Alaska that are shoreward of the BSAI, or when
processing groundfish harvested in the BSAI.
(b) IR/IU species. The following species are defined as ``IR/IU
species'' for the purposes of this section:
(1) Pollock.
(2) Pacific cod.
(3) Beginning January 1, 2003, rock sole.
(4) Beginning January 1, 2003, yellowfin sole.
(c) Minimum retention requirements--(1) Definition of retain on
board. Notwithstanding the definition at 50 CFR 600.10, for the purpose
of this section, to retain on board means to be in possession of on
board a vessel.
(2) The following table displays minimum retention requirements by
vessel category and directed fishing status:
----------------------------------------------------------------------------------------------------------------
You must retain on board
If you own or operate a And until lawful transfer
----------------------------------------------------------------------------------------------------------------
(i) Catcher vessel................................ (A) Directed fishing for an all fish of that species
IR/IU species is open. brought on board the vessel.
(B) Directed fishing for an all fish of that species
IR/IU species is prohibited. brought on board the vessel
up to the MRB amount for
that species.
(C) Retention of an IR/IU no fish of that species.
species is prohibited.
(ii) Catcher/ processor........................... (A) Directed fishing for an a primary product from all
IR/IU species is open. fish of that species brought
on board the vessel.
(B) Directed fishing for an a primary product from all
IR/IU species is prohibited. fish of that species brought
on board the vessel up to
the point that the round-
weight equivalent of primary
products on board equals the
MRB amount for that species.
(C) Retention of an IR/IU no fish or product of that
species is prohibited. species.
(iii) Mothership.................................. (A) Directed fishing for an a primary product from all
IR/IU species is open. fish of that species brought
on board the vessel.
(B) Directed fishing for an a primary product from all
IR/IU species is prohibited. fish of that species brought
on board the vessel up to
the point that the round-
weight equivalent of primary
products on board equals the
MRB amount for that species.
(C) Retention of an IR/IU no fish or product of that
species is prohibited. species.
----------------------------------------------------------------------------------------------------------------
[[Page 63891]]
(d) Bleeding codends and shaking longline gear. Any action intended
to discard or release an IR/IU species prior to being brought on board
the vessel is prohibited. This includes, but is not limited to bleeding
codends and shaking or otherwise removing fish from longline gear.
(e) At-sea discard of product. Any product from an IR/IU species
may not be discarded at sea, unless such discarding is necessary to
meet other requirements of this part.
(f) Discard of fish or product transferred from other vessels. The
retention requirements of this section apply to all IR/IU species
brought on board a vessel, whether harvested by that vessel or
transferred from another vessel. At-sea discard of IR/IU species or
products that were transferred from another vessel is prohibited.
(g) IR/IU species as bait. IR/IU species may be used as bait
provided that the deployed bait is physically secured to authorized
fishing gear. Dumping of unsecured IR/IU species as bait (chumming) is
prohibited.
(h) Previously caught fish. The retention and utilization
requirements of this section do not apply to incidental catch of dead
or decomposing fish or fish parts that were previously caught and
discarded at sea.
(i) Minimum utilization requirements. If you own or operate a
catcher/processor or mothership, the minimum utilization requirement
for an IR/IU species harvested in the BSAI is determined by the
directed fishing status for that species according to the following
table:
----------------------------------------------------------------------------------------------------------------
then your total weight of retained
or lawfully transferred products
If * * * produced from your catch or receipt
of that IR/IU species during a
fishing trip must * * *
----------------------------------------------------------------------------------------------------------------
(1) directed fishing for an IR/IU species is open, equal or exceed 15 percent of the
round-weight catch or round-weight
delivery of that species during
the fishing trip.
(2) directed fishing for an IR/IU species is prohibited, equal or exceed 15 percent of the
round-weight catch or round-weight
delivery of that species during
the fishing trip or 15 percent of
the MRB amount for that species,
whichever is lower.
(3) retention of an IR/IU species is prohibited, equal zero.
----------------------------------------------------------------------------------------------------------------
6. In Sec. 679.50, paragraphs (c)(1)(i), (c)(1)(ii), (c)(3)
introductory text, (d)(1), and (d)(2) are revised to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 1997.
* * * * *
(c) * * *
(1) * * *
(i) A mothership of any length that processes 1,000 mt or more in
round-weight equivalent of groundfish during a calendar month is
required to have an observer aboard the vessel each day it receives or
processes groundfish during that month.
(ii) A mothership of any length that processes from 500 mt to 1,000
mt in round-weight equivalent of groundfish during a calendar month is
required to have an observer aboard the vessel at least 30 percent of
the days it receives or processes groundfish during that month.
* * * * *
(3) Assignment of vessels to fisheries. At the end of any fishing
trip, a vessel's retained catch of groundfish species or species groups
for which a TAC has been specified under Sec. 679.20, in round-weight
equivalent, will determine to which fishery category listed under
paragraph (c)(2) of this section the vessel is assigned.
* * * * *
(d) * * *
(1) Processes 1,000 mt or more in round-weight equivalent of
groundfish during a calendar month is required to have an observer
present at the facility each day it receives or processes groundfish
during that month.
(2) Processes 500 mt to 1,000 mt in round-weight equivalent of
groundfish during a calendar month is required to have an observer
present at the facility at least 30 percent of the days it receives or
processes groundfish during that month.
* * * * *
[FR Doc. 97-31711 Filed 12-2-97; 8:45 am]
BILLING CODE 3510-22-P
