[Federal Register Volume 59, Number 71 (Wednesday, April 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8923]


[[Page Unknown]]

[Federal Register: April 13, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 663

[Docket No. 940254-4104; I.D. 012894A]
RIN 0648-AF95

 

Pacific Coast Groundfish Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to allocate annually the U.S. 
Pacific whiting harvest guideline or quota, in 1994 through 1996, 
between fishing vessels that either catch and process at sea or catch 
and deliver to at-sea processors, and fishing vessels that deliver to 
processors located on shore. In each of the 3 years, after 60 percent 
of the annual harvest guideline (or quota) for whiting is taken, 
further at-sea processing in the exclusive economic zone (EEZ) will be 
prohibited. The remaining 40 percent (104,000 metric tons (mt) in 1994) 
will be reserved initially for fishing vessels that deliver to shore-
based processors. On or about August 15, any amount of the harvest 
guideline (including any part of the 40 percent initially held in 
reserve) that is determined by the Director, Northwest Region, NMFS, 
not to be needed by the shoreside sector during the remainder of the 
year will be made available to the at-sea processing sector. This 
action is intended to promote the goals and objectives of the Pacific 
Coast Groundfish Fishery Management Plan (FMP) by equitably sharing the 
harvest guideline between shore-based and at-sea processors, by 
contributing to the economies of coastal communities by providing 
reasonable opportunity for shoreside processing of the whiting harvest 
guideline, and by promoting stability in the West Coast fishing 
industry by diverting effort from other fully utilized fisheries.

EFFECTIVE DATES: April 8, 1994 through December 31, 1996.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) can be obtained from the Pacific Fishery Management 
Council, 2000 SW First Avenue, suite 420, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140, 
or Rodney R. McInnis at 310-980-4030.

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a 
recommendation from the Pacific Fishery Management Council (Council) 
for a 3-year framework to allocate the annual Pacific whiting harvest 
guideline or quota between the shoreside and at-sea industry sectors. 
The background, problem, and Council recommendation were fully 
described in the notice of proposed rulemaking for this action (58 FR 
8896, February 24, 1994). Public comments were requested through March 
21, 1994. Eleven letters were received and are addressed later in the 
preamble to this final rule. The comments resulted in no change to the 
regulatory text of the proposed rule.
    In summary, the problems the Council identified and is seeking to 
solve are: Too much fishing and processing capacity and not enough 
fish, inequitable distribution of economic benefits among the competing 
sectors, and regulatory instability that has prevented the industry 
from making timely business decisions.
    To resolve these problems, the Council identified the following 
priorities: (1) Ensure that the shore-based sector has reasonable 
opportunity to participate; (2) foster stability of the shore-based 
processing sector by providing replacement revenues for other faltering 
fisheries; (3) help stabilize faltering rural coastal economies by 
providing fishing, processing, and supporting industry revenues to 
replace income declines in other industries; (4) achieve maximum net 
benefit to the Nation by putting economic benefits directly into 
coastal communities and distributing income impacts/benefits along 
traditional geographic paths; (5) spread the fishery over time and 
area, reducing potential pulse fishery impacts on whiting, salmon, and 
rockfish stocks; (6) prevent effort shift to other species; (7) address 
management of the entire groundfish resource rather than piecemeal; (8) 
contribute to increased long-term product yield and employment 
opportunities by spreading harvest over a longer season; and (9) 
discourage additional capital investment in harvesting or processing 
facilities.
    The Council convened an ad hoc industry subcommittee in July 1993 
in Portland, Oregon, to develop an allocation option that would be 
acceptable to all sectors. The subcommittee included a representative 
from each major sector in the whiting industry: Catcher vessels 
delivering at-sea, shoreside, and ``at-large''; shoreside processors; 
catcher/processors; and mothership processors. The ad hoc committee, 
after considering a number of alternatives, successfully negotiated a 
3-year agreement that was acceptable to all participants, and 
subsequently was adopted by the Council and recommended to NMFS.
    The Council recommended that the first 60 percent of the annual 
whiting harvest guideline be available to all vessels in open 
competition with the remaining 40 percent reserved initially for shore-
based activities. The Council recommended that after 60 percent has 
been harvested, no further at-sea processing be allowed for the 
remainder of the year or until August 15, when an additional portion of 
the harvest guideline would be made available pursuant to a NMFS 
assessment of how much of the harvest guideline will be utilized by 
shore-based processors during the remainder of the year. Any surplus to 
shore-based needs would be made available to all permitted vessels on 
or as soon as practicable after August 15. The Council recommended that 
the allocation scheme remain in effect for 3 years, 1994-1996. Any 
Pacific whiting harvested or processed in state ocean waters (0-3 
nautical miles offshore) will be counted toward the EEZ limits.

Additional Releases

    In the preamble to the proposed rule, comments were requested 
regarding the advisability of a second release of whiting after August 
15 if necessary to ensure full utilization of the resource. The only 
comments relevant to the release date preferred a single release on 
October 15 rather than August 15 (see comment 6 below). A single 
release has been preferred by the industry in the past because of the 
confusion and logistical difficulties associated with multiple 
openings. NMFS agrees with the industry in preferring a single release, 
but recognizes that making accurate projections of shore-based needs is 
difficult. If it becomes obvious, after August 15, that shore-based 
needs have been substantially over-estimated, NMFS may release whiting 
at a later date, but only after consultation with the Council and only 
to ensure full utilization of the resource. The regulatory text at 
Sec. 663.23(b)(4)(ii), which authorizes the release of whiting as soon 
as practicable after August 15, has been revised to authorize 
additional reserve releases.

Comments and Responses

    The comments in 11 letters received during the public comment 
period ending March 21, 1994, are summarized below. Three letters 
opposed all or part of the proposed rule, and eight supported it.

Comments Opposing the Proposed Rule

    Comment 1: The allocation is not equitable--the benefits and 
burdens must be shared fairly. The shoreside reserve of 40 percent 
(104,000 mt in 1994) is too high, particularly since the shore-based 
industry has processed only about half this amount in its highest year. 
One commenter preferred a shoreside reserve of 35 percent. Another 
preferred allocations to be based on actual, demonstrated performance.
    Response: The Council's recommendation is a negotiated compromise 
that enables two sectors with differing operating needs to co-exist. 
The Council's industry subcommittee agreed to the use of a percentage 
allocation that benefits each sector when the harvest guideline is high 
and burdens each sector when it is low. In the preamble to the proposed 
rule, NMFS agreed that the benefit of an increased harvest guideline, 
as occurs in 1994, should be equitably shared between the at-sea and 
shore-based sectors, particularly since it is not expected to result in 
increased capitalization of either sector. The relatively high harvest 
guideline in 1994 results in the shore-based reserve for that year 
being higher than previous catch levels. If the entire reserve is not 
needed by the shoreside sector, the surplus will be released, 
increasing the amount available for processing at sea.
    The percentage level of the shoreside reserve was debated at great 
length within the industry subcommittee. A 35-percent level was 
considered, but was not supported by the subcommittee. NMFS believes 
the 40-percent level recommended by the Council is reasonable.
    Comment 2: The proposed rule fails to consider that, in the past, 
shoreside performance has fallen short of its preseason processing 
estimates.
    Response: This final rule sets the shore-based reserve at 40 
percent, and is not dependent on an annual preseason processing 
estimate. Whiting surplus to shoreside needs will be made available for 
at-sea processing to assure that the resource is fully utilized. If the 
harvest guideline declines, the shoreside reserve may be more in line 
with past performance levels.
    Comment 3: The statement in the preamble to the proposed rule that 
each sector has the capacity to take a substantial portion, if not all, 
of the harvest guideline is inconsistent with the statement in the 
preamble to the proposed rule that the shore-based sector will have the 
opportunity to take more than double its historical catch.
    Response: The statements in the proposed rule preamble are not 
inconsistent. They acknowledge that the historical shoreside catch has 
not reached what is believed to be existing shoreside capacity. As 
explained in the response to comment 1, the 1994 shoreside reserve is 
higher than past performance in part due to the large increase in the 
whiting harvest guideline and the application of a fixed percentage to 
that harvest guideline.
    Comment 4: The analysis accompanying the rule assumes that the at-
sea fleet is not a participant in the fishery.
    Response: NMFS disagrees. The EA/RIR contains substantial 
information regarding recent operations by the at-sea processing fleet. 
However, the level of participation by that fleet under the limited 
entry program, which was implemented on January 1, 1994, and under 
various allocation options, still is not known with certainty. The 
limited entry fishery established a window period and certain 
requirements that must be met for a vessel to receive an initial 
limited entry permit. Most, if not all, catcher/processors did not meet 
the qualifications. They are treated the same as other non-qualifying 
vessels that operated in the groundfish fishery after the window 
period. The number and types of vessels that would attempt to acquire 
limited entry permits were unknown at the time the analytical documents 
were prepared. However, reasonable assumptions were made and catcher/
processor participation was considered.
    Comment 5: The commenter disagreed with the statement that ``the 
Council is concerned about the impacts on traditional fishermen and the 
rural coastal communities where they reside, focusing on those 
displaced by Americanization of joint venture fisheries.''
    Response: This statement in the proposed rule reflects the 
Council's position as it appears in the EA/RIR. NMFS acknowledges that 
Americanization of the whiting fishery, as contemplated under the 
Magnuson Fishery Conservation and Management Act (Magnuson Act), 
provided additional employment in the domestic processing sector. It 
also resulted in displacement of those whiting catcher vessels that had 
delivered to foreign processing vessels but could not find alternative 
domestic markets.
    Comment 6: Two commenters, one representing the majority of at-sea 
processing vessels, stated that any release of surplus shoreside 
reserve should not be made until October 15, after the end of the 
pollock ``B'' season in Alaska.
    Response: NMFS has not changed the August 15 release date that was 
part of the negotiated agreement by the industry subcommittee and 
recommended by the Council. This date was selected because it provided 
an equal opportunity for participation by vessels in the at-sea 
processing fleet, particularly smaller catcher vessels delivering to 
motherships, to operate before weather deteriorates or whiting migrate 
north to Canadian waters. A later release could disproportionately 
benefit catcher/processors that are larger and more capable of fishing 
successfully in rough weather. With an August 15 release, both 
mothership and catcher/processor operations would have an opportunity 
to participate, but may have to choose between the pollock ``B'' season 
or the whiting fishery. With some vessels choosing to fish in Alaska, 
effort in the whiting fishery in August would be lower than in the 
spring, which, given the lower amount of whiting that may be available, 
would support an orderly fishery.
    Comments Supporting the Proposed Rule: Eight letters from the 
shore-based fishing and processing sector were received in favor of the 
proposed rule. The letters supported the negotiated agreement that 
recognizes the differences in shore-based and at-sea operations, allows 
each sector to operate at its maximum efficiency levels, and provides 
increased stability to coastal communities and the fishing industry. A 
comment also was received from an organization representing at-sea 
processors that supported the 40-percent reserve for the shore-based 
sector. However, as summarized above, this organization did not agree 
with the release date or with some of the statements in the proposed 
rule.
    Response: None required.

Clarification

    This final rule also revises an incorrect cross-reference at 
Sec. 663.7, which should read Sec. 663.23(b)(4)(iv). This revision was 
stated correctly in the regulatory text of the proposed rule, but 
incorrectly in the preamble.

Classification

    This final rule has been determined to be ``not significant'' for 
purposes of Executive Order 12866.
    This final rule is published under the authority of the Magnuson 
Act, 16 U.S.C. 1801 et seq. The Assistant Administrator for Fisheries, 
NOAA (AA), has determined that it is necessary for management of the 
Pacific Coast groundfish fishery and that it is consistent with the 
Magnuson Act and other applicable law.
    The AA finds good cause under section 553(d)(3) of the 
Administrative Procedure Act to make this rule effective upon filing at 
the Office of the Federal Register. If this rule is not effective on 
April 15, 1994, the date that the at-sea processing fleet may begin 
operations, or shortly thereafter, preemption of the shoreside 
processing sector by the at-sea sector would be a real possibility. 
Therefore, delaying the effective date of this rule for 30 days is 
contrary to the public interest.

List of Subjects in 50 CFR Part 663

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 8, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 663 is amended 
as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

    1. The authority citation for part 663 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.


Sec. 663.7  [Amended]

    2. In Sec. 663.7, paragraph (o), reference to ``Sec. 663.23(b)(v)'' 
is revised to read ``Sec. 663.23(b)(4)(iv)''.
    3. In Sec. 663.23, paragraph (b)(4) is added to read as follows:


Sec. 663.23  Catch restrictions.

* * * * *
    (b) * * *
    (4) Pacific whiting--allocation. The following provisions apply 
1994 through 1996--
    (i) The shoreside reserve. When 60 percent of the annual harvest 
guideline for Pacific whiting has been or is projected to be taken, 
further at-sea processing of Pacific whiting will be prohibited 
pursuant to paragraph (b)(4)(iv) of this section. The remaining 40 
percent of the harvest guideline is reserved for harvest by vessels 
delivering to shoreside processors.
    (ii) Release of the reserve. That portion of the annual harvest 
guideline that the Regional Director determines will not be used by 
shoreside processors by the end of that fishing year shall be made 
available for harvest by all fishing vessels, regardless of where they 
deliver, on August 15 or as soon as practicable thereafter. NMFS may 
again release whiting at a later date if it becomes obvious, after 
August 15, that shore-based needs have been substantially over-
estimated, but only after consultation with the Council and only to 
insure full utilization of the resource.
    (iii) Estimates. Estimates of the amount of Pacific whiting 
harvested will be based on actual amounts harvested, projections of 
amounts that will be harvested, or a combination of the two. Estimates 
of the amount of Pacific whiting that will be used by shoreside 
processors by the end of the fishing year will be based on the best 
information available to the Regional Director from state catch and 
landings data, the survey of domestic processing capacity and intent, 
testimony received at Council meetings, and/or other relevant 
information.
    (iv) Announcements. The Assistant Administrator will announce in 
the Federal Register when 60 percent of the Pacific whiting harvest 
guideline has been, or is about to be, harvested, specifying a time 
after which further at-sea processing of Pacific whiting in the fishery 
management area is prohibited. The Assistant Administrator will 
announce in the Federal Register any release of the reserve. In order 
to prevent exceeding the limits or underutilizing the resource, 
adjustments may be made effective immediately by actual notice to 
fishermen and processors, by phone, fax, Northwest Region computerized 
bulletin board (contact 206-526-6128), letter, press release, and/or 
U.S. Coast Guard Notice to Mariners (monitor channel 16 VHF), followed 
by publication in the Federal Register, in which instance public 
comment will be sought for a reasonable period of time thereafter. If 
insufficient time exists to consult with the Council, the Regional 
Director will inform the Council in writing of actions taken.
* * * * *
[FR Doc. 94-8923 Filed 4-8-94; 4:39 pm]
BILLING CODE 3510-22-P