[Federal Register Volume 59, Number 82 (Friday, April 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10195]
[[Page Unknown]]
[Federal Register: April 29, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 672 and 675
[Docket No. 930954-4110; I.D. 092193A]
RIN 0648-AF54
Groundfish of the Gulf of Alaska; Groundfish Fishery of the
Bering Sea and Aleutian Islands Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues final regulations to change requirements for
observer coverage of the groundfish fisheries in the Gulf of Alaska
(GOA) and the Bering Sea and Aleutian Islands management area (BSAI).
This action is necessary to improve management of the groundfish
fisheries off Alaska. The intended effect of this action is to increase
observer coverage of the groundfish harvests and to promote the fishery
management objectives of the Fishery Management Plan (FMP) for
Groundfish of the GOA and the FMP for the Groundfish Fishery of the
BSAI.
EFFECTIVE DATE: Effective July 1, 1994, except for
Sec. 672.27(c)(1)(iii)(F), which will become effective May 31, 1994.
ADDRESSES: Copies of the environmental assessment/regulatory impact
review/final regulatory flexibility analysis (EA/RIR/FRFA) and the
Observer Plan may be obtained from the Fisheries Management Division,
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 (Attn: Lori
Gravel).
FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, Fisheries
Management Division, Alaska Region, NMFS at 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Fishing for groundfish by vessels in the exclusive economic zone
(EEZ) of the GOA and the BSAI is managed by the Secretary of Commerce
(Secretary) according to the FMP for Groundfish of the GOA and the FMP
for the Groundfish Fishery of the BSAI. The FMPs were prepared by the
North Pacific Fishery Management Council (Council) under the Magnuson
Fishery Conservation and Management Act (Magnuson Act) and are
implemented by regulations governing the U.S. groundfish fisheries at
50 CFR parts 620, 672, and 675.
Amendments 13 and 18 to the groundfish FMPs for the BSAI and GOA,
respectively, authorize a comprehensive domestic fishery observer
program. An Observer Plan to implement the program was prepared by the
Secretary in consultation with the Council and issued by NMFS,
effective February 7, 1990 (55 FR 4839, February 12, 1990). At its
December 1992 meeting, the Council reviewed draft changes to the
Observer Plan that were developed by NMFS and a Council-Appointed
Industry Oversight Committee. The Council recommended that NMFS make
the draft changes and initiate a rulemaking to implement them.
A proposed rule to implement the Council's recommendation was
published in the Federal Register October 28, 1993 (58 FR 57979).
Comments on the proposed rule were invited through November 29, 1993.
Two letters of comments were received and are summarized in the
``Response to Comments'' section of this preamble.
After reviewing the reasons for the draft changes to the Observer
Plan and the comments on the proposed rule to implement them, NMFS has
determined that this action is necessary for fishery conservation and
management and implements the following changes to the Observer Plan
and its implementing regulations at Secs. 672.27 and 675.25.
(1) Change the definition of a ``fishing trip'' and base
observer coverage requirements on a new definition of ``fishing
days'' instead of ``fishing trip days''. ``Fishing day'' is defined
as a 24-hour period from 0001 Alaska local time (A.l.t.) through
2400 A.l.t. during which fishing gear is retrieved and groundfish,
as defined at 50 CFR 672.2 and 675.2, are retained for further
processing.
(2) Increase observer coverage on vessels equal to or greater
than 60 feet (ft)(18.3 m) in length overall (LOA) but less than 125
ft (38.1 m) LOA during each calendar quarter, so that vessels in
this size category are required to carry an observer 30 percent of
the fishing days in each calendar quarter in which the vessels
participate for more than 3 fishing days in a directed fishery for
groundfish. Each vessel required to carry an observer during a
calendar quarter must carry an observer during at least one fishing
trip for each of the following fisheries in which the vessel
participates: Pollock, Pacific cod, sablefish, rockfish, flatfish,
and other species of groundfish.
(3) Increase observer coverage of vessels using hook-and-line
gear in the Eastern Regulatory Area of the GOA by requiring
operators of catcher/processor and catcher vessels using hook-and-
line gear that participate in a directed fishery for groundfish to
carry a NMFS-certified observer during at least one fishing trip in
the Eastern Regulatory Area during each calendar quarter that they
participate in a directed fishery for groundfish in this area;
(4) Revise observer coverage requirements for vessels using pot
gear to participate in a directed fishery for groundfish, so that
each vessel using pot gear that is equal to or greater than 60 ft
(18.3 m) LOA is required to carry an observer during at least 30
percent of its fishing days during each calendar quarter in which it
participates for more than 3 days in a directed groundfish pot gear
fishery; and
(5) Revise the conflict of interest standards for NMFS-certified
observers and observer contractors. Revisions include: (1) Placing
restrictions on observers who were employed in the observed fishery
within the preceding 12 months; and (2) prohibiting observer
contractors from assigning observers in response to requests for or
against a specific individual or a specific gender, race, creed, or
age of individual.
The intent of these measures is to increase observer coverage of
the groundfish harvests and to promote the fishery management
objectives of the FMPs. Further descriptions of, and reasons for, these
measures are contained in the preamble to the proposed rule (58 FR
57979, October 28, 1993).
With the exception of Sec. 672.27(c)(1)(iii)(F), the effective date
of the final rule is July 1, 1994. This date coincides with the
beginning of the third calendar quarter and will facilitate the
implementation of new quarterly observer coverage requirements by
reducing confusion that would result from a mid-quarter effective date.
Section 672.27(c)(1)(iii)(F) reduces observer coverage requirements for
vessels 125 ft LOA or longer fishing for groundfish with pot gear, and
thus, provides relief to vessel operators in this category. Therefore,
NMFS has determined that the effective date for this section should not
be delayed until July 1, 1994. The effective date for
Sec. 672.27(c)(1)(iii)(F) is May 31, 1994.
Changes in the Final Rule From the Proposed Rule
This final rule includes three changes from the proposed rule.
These changes are described as follows:
First, technical changes are made to Secs. 672.27 and 675.25 to
include minor editorial revisions and metric equivalents for specified
lengths of vessels that require different levels of observer coverage.
Second, Sec. 672.27(c)(1)(v)(C) is amended to clarify that a
catcher vessel delivering groundfish to a shoreside processor or to a
mothership in Alaska State waters during a weekly reporting period will
be assigned to a fishery category based on the retained catch
composition of all groundfish delivered to processors during that
weekly reporting period and reported on Alaska Department of Fish and
Game fish tickets.
Finally, the Observer Plan is corrected by removing from Attachment
3 (Standards of Observer Conduct) an inappropriate reference to title
15 CFR subtitle A, part O, of the U.S. Department of Commerce
Regulations. These regulations pertained to standards of conduct for
employees of the U.S. Department of Commerce. Certified observers are
not NMFS employees and therefore cannot be held to these standards. The
Observer Plan continues to require certified observers to comply with
the conflict of interest standards and general standards of behavior
set out in Attachments 3 and 4 of the amended Plan.
Response to Comments
Two letters were received within the comment period that ended
November 29, 1993. A summary of comments and NMFS's responses follow.
Comment 1. The proposed action bases observer coverage on fishing
days instead of fishing trip days and increases observer coverage on
vessels equal to or greater than 60 ft (18.3 m) LOA but less than 125
ft (38.1 m) LOA. This action would increase the financial burden on the
catcher boat fleet, particularly on those vessels delivering to
shoreside facilities that are required to have observer coverage. This
results in an inequitable impact on the catcher boat fleet and further
aggravates the disproportionate effect of the Observer Program on
catcher vessels. Given these effects, implementation of measures to
increase observer coverage should be delayed until after the North
Pacific Fisheries Research Plan is effective.
Response. NMFS acknowledges that the proposed rule would increase
observer costs for vessels equal to or greater than 60 ft (18.3 m) LOA
but less than 125 ft (38.1 m) LOA that use trawl or hook-and-line gear
to participate in a directed fishery for Alaska groundfish. Larger
vessels currently are required to have an observer on board at all
times and are not affected by the proposed change in coverage
requirements. The increased observer coverage for vessels equal to or
greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1 m) LOA is
necessary to obtain more adequate information on which the groundfish
fisheries are managed, including better estimates of groundfish catch,
discard amounts, and prohibited species bycatch rates. Delay of
regulatory action to increase observer coverage until the North Pacific
Fisheries Research Plan is effective would neglect identified data
requirements necessary for effective management of the Alaska
groundfish fisheries.
Comment 2. The increased financial burden to the small boat fleet
that will ensue from increased observer coverage is out of proportion
to the benefits that might result, particularly if NMFS continues to
use observer data primarily as a basis for fishery closures or
enforcement, rather than for more effective fishery management.
Response. NMFS's primary responsibility for inseason management of
the groundfish resource is to monitor groundfish harvests and
prohibited species bycatch rates, so that when a groundfish total
allowable catch (TAC) or a prohibited species bycatch allowance is
reached, fishery closures can be implemented to prevent specified TACs
or bycatch allowances from being exceeded.
Existing observer coverage requirements established for vessels
equal to or greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1
m) LOA were determined by the Council and its ad hoc Observer Committee
to be inadequate to meet data needs for effective monitoring of
groundfish and prohibited species catch amounts by this segment of the
groundfish fleet. NMFS concurs in this determination and has approved
the Council's recommended increase in observer coverage for vessels
equal to or greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1
m) LOA. The increase is intended to improve the level of observer
coverage from this size class of vessel without imposing costs that are
disproportionate to the benefits that are anticipated to result from
better inseason management of the groundfish fisheries.
Use of observer data is not limited to inseason management of the
fisheries and compliance monitoring of regulatory programs. Observer
data also are used to assess the status of fishery resources and as a
basis for assessment and development of management measures. NMFS has
released certain observer data to the public under the Freedom of
Information Act for purposes of independent industry analyses of
prohibited species bycatch rates and operational factors that may
reduce bycatch rates of these species. Additional observer data may be
disclosed to support industry initiatives to reduce prohibited species
bycatch rates under a proposed rule published in the Federal Register
January 19, 1994 (59 FR 2817). These Federal and private initiatives to
use observer data for more effective fishery management will be
enhanced to the extent that more observer data are collected from
vessels under 125 ft (38.1 m) LOA as set out in this final rule.
Comment 3. The purpose and intent of the proposed rule to correct
problems encountered by NMFS in administering observer coverage on
vessels equal to or greater than 60 ft (18.3 m) LOA but less than 125
ft (38.1 m) LOA are supported. However, given the direction in which
the fishery management process is progressing, 30 percent coverage for
these vessels likely is inadequate; 100 percent observer coverage on
all vessels capable of carrying an observer should be considered.
Response. One hundred percent observer coverage on vessels equal to
or greater than 60 ft LOA but less than 125 ft LOA has been required
for particular fisheries for specified areas and limited time periods
to meet special management needs (59 FR 3000, January 20, 1994, as
modified at 59 FR 4009, January 28, 1994, and 59 FR 15346, April l,
1994). However, the additional costs associated with 100 percent
observer coverage on all vessels in the groundfish fishery under 125 ft
LOA in all areas at all times would impose disproportionate costs on
this sector of the groundfish fleet and, therefore, are not now
justified under the current open access groundfish management program.
NMFS will continue to assess the need for increased observer coverage
to meet special resource or fishery management needs.
Comment 4. Despite support for the proposed action, concerns remain
about the ability of vessels to manipulate observer coverage in certain
fisheries and/or in certain areas where prohibited species bycatch
rates may be higher. To address these concerns, the final rule should
be amended to require a vessel equal to or greater than 60 ft (18.3 m)
LOA but less than 125 ft (38.1 m) LOA to carry an observer for 30
percent of the days it engages in any particular fishery during any
calendar quarter in which it meets the threshold (3-day) minimum
requirement on a fishery-by-fishery basis.
Response. The final rule limits the manipulation of observer
coverage by decreasing the number of fishing days in a quarter that
trigger observer coverage requirements, basing coverage requirements on
fishing days rather than fishing trip days, and requiring observation
of at least one trip for each fishery that a vessel participates in
during a quarter. These measures should reduce the potential for
manipulation of observer coverage and increase the amount of observer
data available for the management of specific fisheries. Nonetheless,
an opportunity still exists for a vessel operator to manipulate
observer coverage to reduce or increase coverage in different
fisheries.
The EA/RIR/FRFA prepared for this action considered an alternative
for increased observer coverage similar to the one presented in Comment
4. The alternative was more stringent and could provide more observer
data of certain fisheries relative to the preferred alternative
implemented under this final rule. However, this alternative was not
adopted by the Council for several reasons. First, concerns were
expressed that some fishermen would have difficulties complying with 30
percent observer coverage in each fishery because fishermen would need
to be aware of and plan for the target fishery each trip and keep track
of the exact number of fishing days by fishery. Second, 30 percent
coverage by fishery would be relatively more expensive for a vessel in
the 60-125 ft (18.3 m-38.1 m) LOA category to comply with relative to
the preferred alternative. Last, compliance monitoring would be more
difficult and associated enforcement costs would be increased relative
to the preferred alternative under the final rule due to calculations
to check 30 percent observer coverage by fishery.
Comment 5. The proposed action to increase coverage of the longline
fisheries in the eastern GOA is inadequate for two reasons. First, the
proposed action is subject to manipulation. Second, the overall level
of reliable observer-generated data from the hook-and-line gear fleet
in the eastern GOA is deplorable. To respond to these inadequacies, the
final rule should require all vessels in the 60-125 ft (18.3-38.1 m)
LOA category that use hook-and-line gear to carry observers a minimum
of 30 percent of the fishing days they operate in the eastern GOA
during any particular calendar quarter on a fishery-by-fishery basis.
Furthermore, NMFS should make a concerted effort to place observers on
vessels under 60 ft (18.3 m) LOA so that data can be gathered about the
operating characteristics of the small boat fleet that accounts for
most of the hook-and-line harvest in the eastern GOA.
Response. The alternative coverage requirements suggested in
Comment 5 for longline vessels in the eastern GOA was considered by the
Council, but not adopted for reasons similar to those presented in the
response to Comment 4.
The Council considered lowering the size limit for vessels required
to carry observers to vessels less than 60 ft (18.3 m) LOA. The Council
did not adopt this alternative because of increased costs to industry
and increased chance of injury to an observer or crew on small vessels
because of limited working space and accommodations. Under the current
Observer Plan, NMFS has determined that implementation of changes to
the observer coverage requirements for vessels under 60 ft (18.3 m) LOA
would require separate regulatory action. Furthermore, staffing and
budget constraints prevent NMFS from placing employees onboard small
vessels to serve as observers. Given these regulatory and practical
constraints, observer coverage requirements for the small boat fleet
would best be pursued under the North Pacific Fisheries Research Plan,
which is pending approval and implementation by the Secretary.
Comment 6. The proposed action to lower observer coverage on
vessels using pot gear is premature and not supported as long as
observer data generated from the pot gear fisheries are used for
allocative purposes. Data used to support allocative measures should be
based on comparable levels of observer coverage. Therefore, observer
coverage on vessels using pot gear should remain unchanged until an
individual vessel quota system is implemented that will effectively
address resource allocation issues.
Response. Since the implementation of the domestic observer program
in 1990, observer data collected onboard pot gear vessels participating
in a directed fishery for groundfish consistently indicate that
relatively low levels of prohibited species bycatch mortality are
associated with these operations. The Council recommended that NMFS
reduce the observer coverage requirements for pot vessels equal to or
greater than 125 ft (38.1 m) LOA from 100 percent to 30 percent because
of the very low bycatch mortality associated with these operations and
the Council's expressed policy to encourage selective fishing practices
that typically experience low prohibited species bycatch mortality
rates. Under the final rule, the resulting levels of observer coverage
of vessels using pot gear will assure the collection of sufficient
observer data to identify any changes in assumed bycatch mortality
rates and other factors that may affect future resource allocation
issues.
Classification
The FRFA prepared for this rule concluded that it could have
significant effects on a substantial number of small entities (i.e.,
small businesses, small organizations, and small governmental
jurisdictions with limited resources). A copy of the EA/RIR/FRFA
prepared for this action is available (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects in 50 CFR Parts 672 and 675
Fisheries, Reporting and recordkeeping requirements.
Dated: April 22, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 672 and
675 are amended as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.27, the first sentence of paragraph (a) and
paragraphs (b), (c)(1)(ii)(D) and (c)(1)(iii)(C) and (D) are revised
and paragraphs (c)(1)(ii)(E), (c)(1)(iii)(E), (c)(1)(iii)(F),
(c)(1)(iv) and (c)(1)(v) are added to read as follows:
Sec. 672.27 Observers.
(a) Observer Plan. The operator of a fishing vessel subject to 50
CFR parts 672 and 675, and the manager of a shoreside processing
facility that receives groundfish from a vessel subject to 50 CFR parts
672 and 675, must comply with the Observer Plan. * * *
(b) Purpose. The purpose of this section is to allow observers to
collect Alaska fisheries data deemed by the Regional Director to be
necessary and appropriate for research, management, and compliance
monitoring of fisheries for groundfish, as defined at Sec. 672.2 and
Sec. 675.2 of this chapter, or for other purposes consistent with the
Marine Mammal Protection Act.
(c) * * *
(1) * * *
(ii) * * *
(D) Fishing trip means the time period that starts on the day when
fishing gear is first deployed and ends on the day the vessel offloads
groundfish, returns to an Alaskan port, or leaves the EEZ off Alaska
and adjacent waters of the State of Alaska, and during which one or
more fishing days, as defined in this section, occur.
(E) Fishing day means a 24-hour period, from 0001 A.l.t. through
2400 A.l.t., in which fishing gear is retrieved and groundfish, defined
at Sec. 672.2 or Sec. 675.2 of this chapter, are retained. Days during
which a vessel only delivers unsorted codends to a processor are not
fishing days.
(iii) * * *
(C) A catcher/processor or catcher vessel 125 feet (38.1 meters) in
length overall or longer must carry a NMFS-certified observer at all
times while fishing for groundfish, except for a vessel fishing for
groundfish with pot gear as provided for in paragraph (c)(1)(iii)(F) of
this section.
(D) A catcher/processor or catcher vessel equal to or greater than
60 feet (18.3 meters) length overall but less than 125 feet (38.1
meters) length overall must carry a NMFS-certified observer during at
least 30 percent of its fishing days in each calendar quarter in which
the vessel participates for more than 3 fishing days in a directed
fishery for groundfish. Each vessel that participates for more than 3
fishing days in a directed fishery for groundfish in a calendar quarter
must carry a NMFS-certified observer during at least one fishing trip
during that calendar quarter for each of the groundfish fishery
categories defined under paragraph (c)(1)(iv)(A) through (F) of this
section in which the vessel participates.
(E) A catcher/processor or catcher vessel fishing with hook-and-
line gear that is required to carry an observer under paragraph
(c)(1)(iii)(D) of this section must carry a NMFS-certified observer
during at least one fishing trip in the Eastern Regulatory Area of the
Gulf of Alaska during each calendar quarter in which the vessel
participates in a directed fishery for groundfish in the Eastern
Regulatory Area.
(F) A catcher/processor or catcher vessel equal to or greater than
60 feet (18.3 meters) length overall fishing with pot gear must carry a
NMFS-certified observer during at least 30 percent of its fishing days
in each calendar quarter in which the vessel participates for more than
3 fishing days in a directed fishery for groundfish. Each vessel that
participates for more than 3 fishing days in a directed fishery for
groundfish using pot gear must carry a NMFS-certified observer during
at least one fishing trip during a calendar quarter for each of the
groundfish fishery categories defined under paragraph (c)(1)(iv)(A)
through (F) of this section in which it participates.
(iv) Groundfish fishery categories requiring separate coverage--(A)
Pollock fishery. Fishing that results in a retained amount of pollock,
during any weekly reporting period, that is greater than the retained
amount of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph
(c)(1)(iv) (A) through (F).
(B) Pacific cod fishery. Fishing that results in a retained amount
of Pacific cod, during any weekly reporting period, that is greater
than the retained amount of any other groundfish species or species
group that is specified as a separate groundfish fishery under this
paragraph (c)(1)(iv) (A) through (F).
(C) Sablefish fishery. Fishing that results in a retained amount of
sablefish, during any weekly reporting period, that is greater than the
retained amount of any other groundfish species or species group that
is specified as a separate groundfish fishery under this paragraph
(c)(1)(iv) (A) through (F).
(D) Rockfish fishery. Fishing that results in a retained aggregate
amount of rockfish of the genera Sebastes and Sebastolobus, during any
weekly reporting period, that is greater than the retained amount of
any other groundfish species or species group that is specified as a
separate groundfish fishery under this paragraph (c)(1)(iv) (A) through
(F).
(E) Flatfish fishery. Fishing that results in a retained aggregate
amount of all flatfish species, except Pacific halibut, during any
weekly reporting period, that is greater than the retained amount of
any other groundfish species or species group that is specified as a
separate groundfish fishery under this paragraph (c)(1)(iv) (A) through
(F).
(F) Other species fishery. Fishing that results in a retained
amount of groundfish, during any weekly reporting period, that does not
qualify as a pollock, Pacific cod, sablefish, rockfish, or flatfish
fishery as defined under paragraphs (c)(1)(iv) (A) through
(c)(1)(iv)(E) of this section.
(v) Assignment of vessels to fisheries. During any weekly reporting
period, the retained catch composition of groundfish species or species
groups of a vessel for which a TAC has been specified under Sec. 672.20
or Sec. 675.20 of this chapter, in round-weight equivalents, will
determine to which of the fishery categories listed under paragraph
(c)(1)(iv) (A) through (F) of this section the vessel is assigned.
(A) A catcher/processor vessel will be assigned to fishery
categories at the end of each weekly reporting period based on the
round-weight equivalent of the retained groundfish catch composition
included in the weekly production report for the vessel submitted to
the Regional Director under Sec. 672.5(c)(2) or Sec. 675.5(c)(2) of
this chapter.
(B) A catcher vessel that delivers to mothership processors in
Federal waters during a weekly reporting period will be assigned to
fishery categories based on the round-weight equivalent of the retained
groundfish catch composition included in the weekly production report
for the mothership submitted to the Regional Director for that week
under Sec. 672.5(c)(2) or Sec. 675.5(c)(2) of this chapter.
(C) A catcher vessel that delivers groundfish to shoreside
processors or to mothership processors in Alaska State waters during a
weekly reporting period will be assigned to a fishery category based on
the round-weight equivalent of the groundfish delivered to processors
during that weekly reporting period and reported on one or more Alaska
Department of Fish and Game fish ticket or tickets as required under
Alaska State regulations at A.S. 16.05.690.
* * * * *
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
3. The authority citation for 50 CFR part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. Section 675.25 is revised to read as follows:
Sec. 675.25 Observers.
Observer requirements authorized under the Observer Plan are set
out at Sec. 672.27 of this chapter.
[FR Doc. 94-10195 Filed 4-28-94; 8:45 am]
BILLING CODE 3510-22-P
