[Federal Register: March 11, 2008 (Volume 73, Number 48)]
[Rules and Regulations]
[Page 12898-12900]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11mr08-16]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 070816465-8008-02]
RIN 0648-AV96
Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited
Species Bycatch Management
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to repeal regulations providing for a
groundfish vessel incentive program (VIP) that was designed to reduce
the rate at which Pacific halibut and red king crab are taken as
incidental catch in Alaska groundfish trawl fisheries. The VIP has not
performed as intended because of the costs associated with
implementation and enforcement, the relatively small number of vessels
covered by the regulation, and the implementation of more effective
bycatch reduction programs. This action is necessary to reduce a
regulatory burden on the industry and to reduce the administrative
costs necessary to support a program no longer considered an effective
means to reduce bycatch rates.
DATES: Effective April 10, 2008.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for
this action are available on the Alaska Region Web site at http://
www.fakr.noaa.gov. Printed copies can be obtained from the Alaska
Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian.
FOR FURTHER INFORMATION CONTACT: Ben Muse, 907-586-7228, or
ben.muse@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the exclusive
economic zone off Alaska under the Fishery Management Plan for
Groundfish of the Bering Sea and Aleutian Islands Management Area and
the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMPs). The North Pacific Fishery Management Council (Council) prepared
the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). Regulations implementing the
FMPs appear at 50 CFR part 679. General regulations that pertain to
U.S. fisheries appear at subpart H of 50 CFR part 600.
Fisheries off Alaska targeting groundfish incidentally catch other
species. Some of these non-groundfish species are themselves the
objects of valuable targeted fisheries and retention of these species
is prohibited in the groundfish fishery. These prohibited species
include Pacific halibut, Chinook and ``other'' salmon, several crab
species, and herring. Measures to restrict the catch of these species
have been incorporated into the FMPs and regulations at 50 CFR part
679. Among these measures are prohibited species catch (PSC) limits
that restrict the amount of a prohibited species that may be taken
incidentally in a groundfish fishery. Groundfish fisheries are
routinely closed in all or part of a management area when a PSC limit
is reached. These closures are expensive for industry because they mean
that valuable groundfish are left unharvested.
Section 3.6.4 of the Gulf of Alaska (GOA) FMP authorizes
regulations to reduce halibut bycatch rates in fisheries subject to
halibut PSC limits to increase the opportunity to fish groundfish total
allowable catches (TACs) before established PSC limits are reached.
Section 3.6.4 of the Bering Sea and Aleutian Island (BSAI) FMP
allows for implementation of regulatory measures to provide incentives
to individual vessels to reduce bycatch rates of prohibited species for
which PSC limits are established. While the GOA provisions are limited
to halibut, the BSAI provisions authorize the creation of incentive
programs to reduce the bycatch of red king crab, as well as halibut.
Vessel Incentive Program
Regulations at 50 CFR 679.21(f) implement a vessel incentive
program (VIP) under the authority of the FMPs. The program creates
incentives for individual groundfish trawl operators to reduce their
incidental catch rates of halibut and red king crab by imposing
penalties on operators whose incidental catch rates exceed specified
standards. Under the program, the Alaska Regional
[[Page 12899]]
Administrator is required to publish fishery-specific bycatch rate
standards for halibut in the GOA and BSAI, and red king crab in the
BSAI two times a year. Observer data on the catch composition of
harvests in subject fisheries is statistically analyzed. Vessels that
exceed the published bycatch rate standards are subject to prosecution.
The program became effective in mid-1991.
The VIP imposes potential costs on fishermen with high observed
prohibited species bycatch rates. This has created an incentive for
fishermen to reduce these observed rates. They can do this by changing
the patterns of their fishing behavior. They can also do this by
manipulating the observer reported rates. Anecdotal evidence from
knowledgeable persons in the Observer Program and NOAA Enforcement
suggests that the incidence of these activities may be high. Pre-
sorting may affect the accuracy of observer reports of halibut and red
king crab bycatch.
Effective enforcement of the VIP imposes significant costs on the
Observer Program and NMFS. Resources for the management of the program
and enforcement of the rule have to be taken from other high priority
management and enforcement responsibilities. It also is not clear from
experience with the program that it has had, or will have, a
significant deterrent effect or has led to the harvest of significant
additional amounts of target groundfish.
Furthermore, the establishment of fishery cooperatives and the
stringent catch monitoring provisions implemented by NMFS to monitor
cooperative-specific allocations of groundfish and prohibited species,
including halibut and red king crab, are additional means to reduce
bycatch. Cooperative members receive a joint allocation of PSC, and
this creates incentives and capabilities for cooperatives to control
individual operation PSC bycatch rates to maximize the value of the
cooperative's PSC allocation.
In June 2003 the Council initiated an amendment to repeal the VIP
given concerns about its effectiveness, its potential to absorb
resources that could be utilized by other, important management and
enforcement functions, and the incentive created to pre-sort bycatch,
as well as developments in other bycatch reduction programs that have
occurred since 1991. In October 2003, the Council reviewed a NMFS
discussion paper and made a preliminary identification of alternatives
for analysis. In December 2003 the Council reiterated its approval of
the alternatives it had adopted in October and scheduled initial review
of the draft for its April 2004 meeting.
In October 2006 the Council initially reviewed the Environmental
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (EA/RIR/IRFA) and (a) identified repeal of the VIP
regulations, without modification of authorizing language in the FMPs,
as its preferred alternative; (b) approved release of the EA/RIR/IRFA
for public review; and (c) scheduled final action for its December 2006
meeting in Anchorage, Alaska. In December 2006 the Council took final
action, adopting the preferred alternative it had identified in October
2006.
The proposed rule for the repeal of the VIP regulations was
published in the Federal Register on November 30, 2007 (72 FR 67692).
The public comment period ended on December 31, 2007. No comments were
received.
Final Regulatory Changes
This action repeals 50 CFR 679.21(f), which imposes the requirement
for compliance with the VIP and describes procedures for assignment of
vessels to fisheries, notification of bycatch rate standards, analysis
of the factors on which bycatch rate standards are to be based, public
comment, publication of notification in the Federal Register, use of
observer data to calculate rates, calculation of individual vessel
rates, and determining whether a vessel is in compliance with bycatch
rate standards.
This action also would repeal 50 CFR 679.7(a)(5) which specifically
prohibits vessels from exceeding a bycatch rate standard specified
under 50 CFR 679.21(f).
This action does not modify the BSAI and GOA FMPs, which contain
language authorizing the Council to develop a new VIP if it chooses.
Regulations at 50 CFR 679.50(k) authorize NMFS Alaska Region to
publish individual vessel bycatch rates for specified prohibited
species. Nothing in this final rule would affect this authority, and
the Alaska Region will continue to publish these bycatch rates on its
Web site.
Changes from Proposed Rule
This rule does not change the authority citation for 50 CFR part
679. The proposed rule inadvertently said that the authority citation
was revised, although it did not identify any revisions. In the final
rule, the phrase ``is revised'' has been replaced with the words
``continues to read.''
Classification
The Administrator, Alaska Region, NMFS, determined that this final
rule is necessary for the conservation and management of the groundfish
fisheries, and that it is consistent with the Magnuson-Stevens Act and
other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA as required by section 604 of the Regulatory
Flexibility Act. The FRFA describes the economic impact this final
rule, if adopted, would have on small entities. A copy of the FRFA is
available from NMFS (see ADDRESSES). A description of the action, why
it is being considered, and the legal basis for this action are
contained at the beginning of the preamble and in the SUMMARY section
of the preamble. A summary of the remainder of the analysis follows.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to
accompany the proposed rule. The proposed rule described the IRFA and
explained to the public how to obtain a copy. No comments were received
on the IRFA or the economic effects of the proposed rule.
In 2005 a total of 78 catcher vessels and 3 catcher/processor
vessels reported gross annual receipts of $4.0 million or less from
fishing groundfish and other species using trawl gear in the GOA, and
can therefore be characterized as small entities under the Small
Business Administration (SBA) size standards. Between 2002 and 2005,
the total number of trawl vessels generating $4.0 million or less in
revenue has ranged from a low of 81 in 2004 and 2005, to a high of 112
in 2002. Average gross revenue (from all fishing sources in Alaska)
generated by these vessels was approximately $840,000 in 2005, which
was an increase from $730,000 in 2004 and $590,000 in 2002. Thus, the
final alternatives may directly regulate between 81 and 112 small
entities in the GOA. There has been a general decline in the number of
vessels that qualify as small entities in the GOA, so the most recent
(2005) estimate of 81 vessels was used for the analysis. This estimate
is likely an overestimate of the number of small entities actually
directly regulated by this action since it does not account for
affiliations among entities. Data necessary to fully assess such
linkages are not currently available.
The BSAI has a larger number of trawl vessels that are considered
small entities than the GOA. In 2005, 99 catcher vessels and 2 catcher/
processor vessels reported gross annual receipts of
[[Page 12900]]
$4.0 million or less, from all their fishery production off Alaska.
Between 2002 and 2005, the total number of vessels categorized as small
entities in these BSAI fisheries has ranged from a low of 101 in 2005
to a high of 123 in 2002. Between 2002 and 2003, the average gross
revenue (from all Alaskan fishing sources) generated by these vessels
has ranged from a low of $1.20 million in 2003 to a high of $1.60
million in 2005. Thus, the final alternatives may directly regulate, on
average, 113 trawl vessels that are considered small entities. This
estimate is likely an overestimate of the number of small entities
actually directly regulated by this action, since it does not account
for affiliations among entities. As is the case for the GOA, data
necessary to fully assess such linkages are not currently available.
Two alternatives to the preferred one were examined. Alternative 1
was the ``No Action'' alternative. Under this alternative the VIP would
have remained in place. This alternative would have involved a renewed
commitment to investigating violations, and prosecuting violators. As
noted earlier, the Council and NMFS have had concerns about the
effectiveness of this program and its potential to mislead estimates of
PSC incidental catches. Moreover, cooperatives offer new methods to
control PSC bycatch rates. Alternative 2 would retain the program, but
would reduce the frequency with which PSC rates are published. The
analysis of Alternatives 1 and 2 is the same, except that Alternative 2
has somewhat lower administrative costs because PSC rates are not
published as often. Alternative 3, which would repeal the VIP
provisions of regulation, was chosen as the final alternative because
it was the only alternative that meets the objectives of this action.
Alternatives 1 and 2 would renew the VIP. If the VIP were
effective, it could lead to reduced bycatch rates and the harvest of
larger proportions of TACs in certain trawl fisheries. However, as
noted, there are important concerns about the program's potential for
successful reduction in bycatch rates. As a practical matter, 100
percent observer coverage is required to make a case against a trawl
operator for exceeding the PSC rate. This level of observer coverage is
available only on trawl vessels greater than or equal to 125 feet LOA.
Enforcement efforts would be principally directed against this class of
vessels. Small entities, as defined by the Small Business
Administration (SBA), could exist among both vessels greater than or
equal to 125 feet length overall (LOA), and less than or equal to 125
feet LOA. Alternative 3 would best meet the objective of this action
and avoid the potential costs that might be imposed on directly
regulated small entities by enforcement activities.
This regulation would not impose new recordkeeping and reporting
requirements on the regulated small entities.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ''small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules.
The preamble to this final rule serves as the small entity
compliance guide. This action does not require any additional
compliance from small entities that is not described in the preamble.
Copies of this final rule are available from NMFS (see ADDRESSES) and
at the following Web site: http://www.fakr.noaa.gov.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 6, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
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.; 3631 et seq.;
Pub. L. 108-447.
Sec. 679.7 [Amended]
0
2. In Sec. 679.7, remove and reserve paragraph (a)(5).
Sec. 679.21 [Amended]
0
3. In Sec. 679.21, remove and reserve paragraph (f).
[FR Doc. E8-4810 Filed 3-10-08; 8:45 am]
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