[Federal Register: June 14, 2004 (Volume 69, Number 113)]
[Rules and Regulations]
[Page 32901-32904]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn04-21]
[[Page 32901]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 040105003-4154-02; I.D. 122203F]
RIN 0648-AR41
Fisheries of the Exclusive Economic Zone Off Alaska; General
Limitations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a final rule amending regulations establishing
pollock Maximum Retainable Amounts (MRA) by adjusting the MRA
enforcement period for pollock harvested in the Bering Sea and Aleutian
Islands management area (BSAI) from enforcement at anytime during a
fishing trip to enforcement at the time of offload. This action is
necessary to reduce regulatory discards of pollock caught incidentally
in the directed fisheries for non-pollock groundfish species. The
intended effect of this action is to better use incidentally caught
pollock in accordance with the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
and the Fishery Management Plan for the Groundfish Fishery of the
Bering Sea and Aleutian Islands Area (FMP).
DATES: Effective on July 14, 2004.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for
this regulatory action may be obtained from the Alaska Region, NMFS,
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228 or
jason.anderson@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the BSAI in the
Exclusive Economic Zone under the FMP. The North Pacific Fishery
Management Council (Council) prepared the FMP pursuant to the Magnuson-
Stevens Act. Regulations implementing the FMP appear at 50 CFR part
679. General regulations that pertain to U.S. fisheries appear at
subpart H of 50 CFR part 600.
This action is one of several adopted by the Council to decrease
regulatory and economic discards and increase catch utilization in the
BSAI groundfish fisheries. Amendment 49 to the FMP was implemented by a
final rule January 3, 1998 (62 FR 63880), and established retention and
utilization standards for pollock and Pacific cod. In June 2003, the
Council adopted Amendment 79 to the FMP, which would establish a
minimum groundfish retention standard (GRS) for specified vessels in
the BSAI. Along with Amendment 79, the Council also adopted a revision
to the MRA enforcement period for pollock harvested by non-American
Fisheries Act (AFA) vessels in the BSAI. Prior to the June Council
actions, the proposed GRS program and pollock MRA revision were
considered as components of one action to reduce discard amounts in the
BSAI. However, the Council recognized that the MRA change was simpler
to implement than the GRS action and requested NMFS to expedite the
pollock MRA revision.
Maximum Retainable Amounts
Regulations at 50 CFR 679.20(e) establish rules for calculating and
implementing MRAs for groundfish species or species groups that are
closed to directed fishing. The MRA is calculated as a percentage of
the retained amount of species closed to directed fishing relative to
the retained amount of basis species or species groups open for
directed fishing. Table 11 to 50 CFR part 679 lists retainable
percentages for BSAI groundfish species. Amounts that are caught in
excess of the MRA must be discarded. Regulations limit vessels to MRAs
at any time during a fishing trip. Under regulations implementing
Amendment 49 to the FMP, vessels must retain all incidental catch of
pollock and Pacific cod up to the MRA and discard the rest.
This action adds regulations at Sec. 679.20(e)(3)(iii) to make the
MRA for pollock caught by non-AFA eligible vessels in the BSAI
management area enforceable at the time of offload. This action is
intended to increase the retention of pollock by non-AFA vessels in the
BSAI, while not increasing the overall amount of pollock harvested by
adjusting the MRA enforcement period so that the MRA for pollock caught
in the BSAI by non-AFA vessels is enforced at the time of offload
rather than at any time during a fishing trip. Under these regulations,
vessels will be able to choose to retain pollock in excess of the MRA
as long as the amount retained at the time of offload is at the
specified MRA percentage with respect to basis species or species
groups retained. By allowing vessels to manage their MRA percentage for
pollock on an offload-to-offload basis, additional pollock may be
retained over the course of a fishing trip. For example, if a vessel
operator catches pollock early in a trip in excess of the MRA, he or
she may choose to retain the pollock and move to an area with lower
incidental catch rates of pollock, thereby lowering the percentage of
pollock retained, with respect to other basis species, prior to the
offloading of catch. As long as the amount of pollock on board the
vessel is at or below the appropriate MRA at the time of offload, the
vessel operator would be in compliance.
In addition to the pollock MRA enforcement period adjustment, this
action clarifies MRA requirements for catcher vessels at Sec.
679.20(e)(3)(i). Regulations at Sec. 679.20(e) did not differentiate
between catcher vessels and catcher processors. However, the definition
of fishing trip is different for each vessel type and the MRA is
enforced differently for each vessel type. Catcher vessels may fish
within more than one statistical reporting area during the same fishing
trip. This action clarifies that the lowest MRA for any of the areas
where fish are harvested during a fishing trip applies for the duration
of the fishing trip. These changes apply to catcher vessels fishing in
the Gulf of Alaska (GOA) and the BSAI and reflect the existing
enforcement protocol. MRA requirements for catcher processors at Sec.
679.20(e)(3) remain unchanged except to change the BSAI pollock MRA
accounting period from anytime during a fishing trip to the time of
offload.
Increased Retention (IR)/Increased Utilization IU)
The following changes to the IR/IU regulations apply to vessels
fishing in the GOA and the BSAI:
Regulations at Sec. 679.27(c)(2) describe retention requirements
for IR/IU species. In Sec. 679.27, paragraphs (c)(2)(i)(B),
(c)(2)(ii)(B), (c)(2)(iii)(B), and (i)(2) refer to the ``MRB'' amount
when directed fishing for an IR/IU species is prohibited. ``MRB'' is an
acronym for maximum retainable bycatch and was changed to MRA for
consistency with the definition of bycatch in the Magnuson-Stevens Act.
The regulatory text in these paragraphs is amended to reflect current
language and to provide consistency with other regulatory text.
Regulations at Sec. 679.27(c)(2)(ii)(B) require vessels to retain
IR/IU species up to the MRA for that species and are enforced at any
time during a fishing trip. This action provides an exception in these
regulations for pollock caught
[[Page 32902]]
by non-AFA eligible vessels in the BSAI.
Further background on the development of the regulatory amendments
contained in this final rule is available in the proposed rule that was
published January 29, 2004 (69 FR 4281) for a 30-day public review and
comment period that ended March 1, 2004. One letter containing 3
comments was received during the comment period.
Response to Comments
Comment 1: The proposed regulation may create an unintended
incentive for non-AFA vessels to increase the overall amount of pollock
caught incidentally when directed fishing for other non-pollock species
in the BSAI. The Council specifically addressed these concerns and
noted that the non-AFA fleet should not increase their historic levels
of incidental pollock catch. Further, the amount of pollock caught by
non-AFA vessels should be compared against these historic levels during
the annual groundfish harvest specification process.
Response: By adjusting the MRA enforcement period for pollock
caught in the BSAI by non-AFA vessels from anytime during a fishing
trip to enforcement at the time of offload, the Council intended to
increase the retention of pollock by these vessels without increasing
their overall catch of pollock. NMFS fisheries managers currently
consider historic and recent incidental catch levels during the total
allowable catch (TAC) specification process and will continue to
provide this information to the Council annually.
Comment 2: Discussion in the proposed rule about the Incidental
Catch Allowance (ICA) for pollock harvested by non-AFA vessels seems to
imply that the purpose of the proposed rule would be achieved if the
non-AFA fleet does not exceed the ICA for pollock. The ICA is not an
appropriate reference point for determining whether pollock harvested
by non-AFA vessels has exceeded historic levels because it is a
conservative, precautionary estimate of incidental pollock catch in all
non-target pollock fisheries, much of which is rolled back to the
pollock fishery during a fishing year.
Response: The goal of this action is to reduce regulatory discards
of pollock by non-AFA vessels without increasing the overall amount of
pollock caught by these vessels. Members of the AFA fleet expressed
concern during the Council process over non-AFA vessels exceeding
historic levels of incidental pollock catch. These concerns were
analyzed in the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (see ADDRESSES) prepared for
the proposed rule and further discussion was provided in the preamble
to the proposed rule. While a discussion of the ICA is provided in the
proposed rule, this discussion was not intended to suggest that the
goal of this action would be achieved if the non-AFA fleet does not
exceed the ICA for pollock. The ICA is not an allocation or quota to
any particular group or sector of the BSAI groundfish fleet. Incidental
catch estimates that form the basis of annual ICAs are conservatively
large to ensure that overall harvest remains within the TAC. NMFS
annually provides information about historical catch to the Council to
guide the ICA specification and will continue to make this information
available to the Council and interested public. The amount of pollock
caught by non-AFA eligible vessels will continue to be well documented.
Should pollock incidental catch rates or amounts increase in a manner
that would require an increase in the ICA, the Council could initiate
regulatory action to reduce incidental catch rates to levels closer to
historical amounts. Any adjustment to the ICA would occur within the
annual harvest specification process.
Comment 3: To the extent that pollock ICA levels are higher than
necessary to support incidental catch rates by non-AFA vessels, NMFS
routinely makes inseason adjustments to the ICA and reallocates any
projected unused pollock to the AFA fleet. These reallocations should
not be considered as historical catch of the non-AFA fleet.
Response: Reallocations of pollock from the ICA to the directed
fishery have occurred every year since 1999 and range from 2,000 mt in
1999 to 12,000 mt in 2001. NMFS managers use actual historical and
recent catch amounts to specify future ICA amounts. As a result, the
ICA can change annually.
Changes From Proposed Rule
There are two changes from the proposed rule to the final rule:
First, regulations at Sec. 679.20(e)(2)(i), (e)(2)(ii), and
(e)(2)(iii) describe how to calculate the MRA for a specific incidental
catch species. Proposed regulations at Sec. 679.20(e)(2)(iv),
(e)(2)(v) and (e)(2)(vi) describe the applicability of MRA regulations.
This final action redesignates Sec. 679.20(e)(2)(iv), (e)(2)(v) and
(e)(2)(vi), as published in the proposed rule, to Sec.
679.20(e)(3)(i), (e)(3)(ii) and (e)(3)(iii), respectively, and adds the
title of ``Application'' for these paragraphs. This change from the
proposed rule is intended to enhance clarity of these regulations for
the public. The cross-reference at Sec. 679.27(d)(1)(iii)(B) is
changed to reflect this redesignation.
Second, the text, ``and not subject to Sec. 679.20(e)(2)(vi)'' at
Sec. 679.20(e)(2)(v) and ``except when exceeded as provided for in
Sec. 679.20(e)(2)(vi)'' at Sec. 679.27(c)(2)(ii) is removed in the
final rule. The revision to the MRA enforcement period for pollock
harvested by non-AFA vessels in the BSAI applies to all vessel types.
In the proposed rule, this text only was found in paragraphs which
apply to catcher/processors. NMFS recognizes that this could cause
confusion and has removed the text from the final action. Regulations
at Sec. 679.20(d)(1)(iii)(B) continue to clarify MRA applicability
requirements for all vessels.
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA. The FRFA incorporates the Initial Regulatory
Flexibility Analysis (IRFA) and a summary of the analyses completed to
support the action. A copy of this analysis is available from NMFS (see
ADDRESSES). Section 604(a) of the Regulatory Flexibility Act (RFA)
identifies the elements that should be in the FRFA and are summarized
below:
Need for, and Objectives of, the Rule
The need for, and objectives of, this action are described above in
the preamble and are not repeated here.
Significant Issues Raised by the Public Comments
The proposed rule was published on January 29, 2004 (69 FR 4281).
An IRFA was prepared for the proposed rule, and described in the
classifications section of the preamble to the rule. The public comment
period ended on March 1, 2004. No comments were received on the IRFA or
concerning the economic impact of the rule.
Number of Small Entities to Which the Rule will Apply
The change in the enforcement period for the pollock MRA will apply
to all non-AFA vessels that catch BSAI pollock as an incidental
species, regardless of vessel size, gear type or target fishery. Non-
AFA trawl catcher processors (head-and-gut sector) incidentally catch
significant amounts of pollock in other groundfish fisheries. Other
non-AFA vessels do not catch significant amounts of pollock and are
therefore seldom affected by the MRA
[[Page 32903]]
for pollock on a haul-by-haul basis. In recent years, 23 to 24 vessels
in the head-and-gut trawl catcher processor sector have fished in the
BSAI. Ownership of the active vessels is concentrated in 10 companies.
One of the listed companies is an independent company that acts as a
manager of four vessels, each of which is an independently owned
corporation with different ownership structures. Therefore, the FRFA
treated these vessels as four independent companies.
Analysis of the 3-year average of estimated annual receipts of the
head-and-gut trawl catcher processor sector indicated that 1 of the 13
companies operating in the sector in 2002 would be defined as a small
entity with receipts of less than $3.5 million. The company operates a
single vessel that is less than 125 feet (38.1 meters).
Steps Taken to Minimize the Significant Economic Impact on Small
Entities
The preferred alternative is not expected to have a significant
negative impact on individual vessel gross receipts. Therefore, this
final rule is not expected to have a significant negative impact on
small entities. The preferred alternative changes the enforcement
interval of the MRA to an offload-to-offload basis. This alternative
meets the goal of the Council of reducing discards of pollock by non-
AFA vessels without increasing the overall amount of pollock harvested
by these vessels. The preferred alternative also provides regulatory
relief to any directly regulated small entity to which the rule applies
by increasing operational flexibility, improving resource utilization,
and reducing the risk of an inadvertent violation of MRA and IR/IU
pollock retention standards. This action is not expected to create any
adverse impacts for directly regulated entities, small or large. The
alternative allows non-AFA vessels to retain additional pollock caught
incidentally in the BSAI management area, thereby helping to meet the
Council's goals and objectives to reduce discards in the groundfish
fisheries off Alaska.
Options for different enforcement periods for adjusting the MRA for
pollock harvested by non-AFA vessels in the BSAI and for increasing the
MRA percentage were considered by the Council, but were eliminated from
detailed analysis due to potential difficulties in enforcing these
options and inconsistencies with the problem statement. The status quo
is the alternative to the preferred action. The status quo would not
lead to increased retention of pollock caught by non-AFA vessels in the
BSAI. The status quo was rejected because it would not accomplish the
objectives of the action.
Small Entity Compliance Guide
This action changes regulations at Sec. 679.20 and Sec. 679.27 to
make the MRA for pollock caught by non-AFA eligible vessels in the BSAI
management area enforceable at the time of offload. This action does
not require 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 website: http://www.fakr.noaa.gov
.
Reporting, Recordkeeping, and Other Compliance Requirements
This regulation does not impose new recordkeeping or reporting
requirements on the regulated small entities. The FRFA did not reveal
any Federal rules that duplicate, overlap or conflict with the proposed
action.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: June 4, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 679 is amended to
read 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., and 3631 et seq.
0
2. In Sec. 679.20, paragraph (e)(2)(iv) is removed, paragraph
(d)(1)(iii)(B) is revised, and paragraph (e)(3) is added to read as
follows:
Sec. 679.20 General limitations.
* * * * *
(d) * * *
(1) * * *
(iii) * * *
(B) Retention of incidental species. Except as described in Sec.
679.20(e)(3)(iii), if directed fishing for a target species, species
group, or the ``other species'' category is prohibited, a vessel may
not retain that incidental species in an amount that exceeds the
maximum retainable amount, as calculated under paragraphs (e) and (f)
of this section, at any time during a fishing trip.
* * * * *
(e) * * *
(3) Application.
(i) For catcher vessels, the maximum retainable amount for vessels
fishing during a fishing trip in areas closed to directed fishing is
the lowest maximum retainable amount applicable in any area, and this
maximum retainable amount must be applied at any time and to all areas
for the duration of the fishing trip.
(ii) For catcher/processors fishing in an area closed to directed
fishing for a species or species group, the maximum retainable amount
for that species or species group applies at any time for the duration
of the fishing trip.
(iii) For all vessels not listed in subpart F of this section, the
maximum retainable amount for pollock harvested in the BSAI is
calculated at the end of each offload and is based on the basis species
harvested since the previous offload. For purposes of this paragraph,
offload means the removal of any fish or fish product from the vessel
that harvested the fish or fish product to any other vessel or to
shore.
* * * * *
0
3. In Sec. 679.27, the table in paragraph (c)(2), and the table in (i)
are revised to read as follows:
Sec. 679.27 Improved Retention/Improved Utilization Program.
* * * * *
(c) * * *
(2) * * *
------------------------------------------------------------------------
YOU MUST RETAIN ON
IF YOU OWN OR OPERATE A AND BOARD UNTIL LAWFUL
TRANSFER
------------------------------------------------------------------------
(i) Catcher vessel (A) Directed all fish of that
fishing for an IR/ species brought
IU species is on board the
open. vessel.
(B) Directed all fish of that
fishing for an IR/ species brought
IU species is on board the
prohibited. vessel up to the
MRA for that
species.
(C) Retention of no fish of that
an IR/ IU species species.
is prohibited.
(ii) Catcher/processor (A) Directed a primary product
fishing for an IR/ from all fish of
IU species is that species
open. brought on board
the vessel.
[[Page 32904]]
(B) Directed a primary product
fishing for an IR/ from all fish of
IU species is that species
prohibited. brought on board
the vessel up to
the point that
the round-weight
equivalent of
primary products
on board equals
the MRA for that
species.
(C) Retention of no fish or product
an IR/IU species of that species.
is prohibited.
(iii) Mothership (A) Directed a primary product
fishing for an IR/ from all fish of
IU species is that species
open. brought on board
the vessel
(B) Directed a primary product
fishing for an IR/ from all fish of
IU species is that species
prohibited. brought on board
the vessel up to
the point that
the round-weight
equivalent of
primary products
on board equals
the MRA for that
species.
(C) Retention of no fish or product
an IR/IU species of that species.
is prohibited.
------------------------------------------------------------------------
* * * * *
(i) * * *
------------------------------------------------------------------------
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 equal or exceed 15 percent
is open, of the round-weight catch
or round-weight delivery of
that species during the
fishing trip.
(2) directed fishing for an IR/IU species equal or exceed 15 percent
is prohibited, of the round-weight catch
or round-weight delivery of
that species during the
fishing trip or 15 percent
of the MRA for that
species, whichever is
lower.
(3) retention of an IR/IU species is equal zero.
prohibited,
------------------------------------------------------------------------
[FR Doc. 04-13198 Filed 6-10-04; 8:45 am]
BILLING CODE 3510-22-S