[Federal Register Volume 59, Number 76 (Wednesday, April 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9482]


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[Federal Register: April 20, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Parts 672 and 675

[Docket No. 940102-4106; I.D. 122293D]
RIN 0648-AF17

 

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 announces the approval of Amendment 25 to the Fishery 
Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and 
Aleutian Islands Area (BSAI) and issues final regulations to implement 
the amendment that eliminates the primary Pacific halibut prohibited 
species catch (PSC) limit established for BSAI trawl fisheries. NMFS 
also issues final regulations that prohibit the discard of salmon taken 
as bycatch in the BSAI groundfish trawl fisheries until the number of 
salmon has been determined by a NMFS-certified observer, and authorizes 
the release of vessel-specific observer data on bycatch of prohibited 
species in the BSAI and Gulf of Alaska (GOA) groundfish fisheries. This 
action is necessary to manage effectively the halibut PSC limit 
established for BSAI trawl fisheries and to provide better information 
on salmon and other prohibited species bycatch. This action is intended 
to promote management and conservation of groundfish and other fish 
resources and to further the objectives contained in the FMP for the 
Groundfish Fishery of the BSAI and the FMP for Groundfish of the GOA.

EFFECTIVE DATE: May 20, 1994.

ADDRESSES: Copies of Amendment 25 and the environmental assessment/
regulatory impact review (EA/RIR) may be obtained from the North 
Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK 
99510; telephone: 907-271-2809.

FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    Fishing for groundfish by U.S. vessels in the exclusive economic 
zone 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 (16 U.S.C. 1801 et seq.) 
(Magnuson Act), and are implemented by regulations governing the U.S. 
groundfish fisheries at 50 CFR parts 672 and 675. General regulations 
that also pertain to U.S. fisheries are codified at 50 CFR part 620.
    This action implements Amendment 25 to the FMP for the Groundfish 
Fishery of the BSAI, which eliminates the primary halibut PSC limit 
established for the BSAI groundfish trawl fisheries. This action also 
implements regulatory amendments that: (1) Prohibit the discard of 
salmon taken as bycatch in the BSAI groundfish trawl fisheries until a 
NMFS-certified observer has determined the number of salmon and 
completed the collection of any scientific data or biological samples 
from the salmon; and (2) authorize the release of vessel-specific 
observer data on bycatch of prohibited species in the BSAI and GOA 
groundfish fisheries.
    A notice of availability of Amendment 25 was published in the 
Federal Register on December 29, 1993 (58 FR 68848), and invited 
comment on the amendment through February 22, 1994. No written comments 
were received. A proposed rule to implement Amendment 25 and the 
regulatory amendments referenced above was published in the Federal 
Register January 19, 1994 (59 FR 2817). Comments on the proposed rule 
were invited through February 28, 1994. Five letters providing 15 
comments were received that are summarized in the Response to Comments 
section, below.
    Amendment 25 was approved by the Secretary on March 25, 1994, under 
section 304(b) of the Magnuson Act. Upon reviewing the amendment, the 
comments on the proposed rule to implement it and the two proposed 
regulatory amendments, NMFS has determined that this final rule 
implementing the following measures is necessary for fishery 
conservation and management:
    1. Elimination of the primary PSC limit established for the BSAI 
groundfish trawl fisheries that, when reached, required NMFS to close 
bycatch limitation zones 1 and 2H of the Bering Sea. This action does 
not affect the overall halibut bycatch mortality limit (3,775 metric 
tons) established for the BSAI trawl gear fisheries.
    2. Prohibit the discard of salmon taken as bycatch in the BSAI 
groundfish trawl fisheries until a NMFS-certified observer has 
determined the number of salmon and completed the collection of any 
scientific data or biological samples from the salmon.
    3. Establishment of regulatory authority to release to the public 
vessel-specific observer data on bycatch of prohibited species in the 
BSAI and GOA groundfish fisheries. On a weekly basis, the following 
observer data are authorized for release by NMFS for each vessel 
participating in a directed fishery for Alaska groundfish:
    1. The name and Federal permit number of the vessel;
    2. The observed number of chinook salmon and other salmon taken by 
the vessel;
    3. The observed vessel bycatch rates of Pacific halibut, Pacific 
herring, king crab, and Chionoecetes bairdi Tanner crab;
    4. The number of observed trawl hauls or fixed gear sets;
    5. The number of trawl hauls that were basket sampled; and
    6. The total weight of basket samples taken from sampled trawl 
hauls.
    NMFS could also make available to the public the following observer 
data collected in the Alaska groundfish trawl fisheries other than for 
rockfish, Greenland turbot, or Atka mackerel. These data would not be 
identified by vessel and would include the following for each observed 
haul:
    1. Date;
    2. Time of day gear is deployed;
    3. Latitude and longitude at beginning of haul;
    4. Bottom depth;
    5. Fishing depth of trawl;
    6. Rate chinook salmon (number of chinook salmon/mt groundfish);
    7. Rate other salmon (number of other salmon/mt groundfish);
    8. Rate Pacific halibut (kg halibut/mt groundfish;
    9. Rate Pacific herring (kg herring/mt groundfish);
    10. Rate king crab (number of crab/mt groundfish);
    11. Rate C. bairdi Tanner crab (number of crab/mt groundfish);
    12. Sea surface temperature (where available); and
    13. Sea temperature at fishing depth of trawl (where available).
    The intent of the measures implemented under this action is to 
eliminate the primary halibut bycatch mortality limit as a halibut 
bycatch management measure, provide better information to management 
agencies and the public on salmon and other prohibited species bycatch, 
and support independent industry initiatives to address the prohibited 
species bycatch problem. Further explanation of, and reasons for, these 
measures are contained in the preamble to the proposed rule (59 FR 
2817, January 19, 1994).

Changes in the Final Rule From the Proposed Rule

    This final rule includes the following changes from the proposed 
rule: These changes are described as follows.
    1. Section 672.7(h) and Sec. 675.7(o) are redesignated as 
Sec. 672.7(o) and Sec. 675.7(p), respectively, to accommodate other 
recently implemented regulations.
    2. Regulatory language at Sec. 675.20(c)(6) has been clarified to 
set out NMFS's intent to allow observers to use NMFS guidelines for an 
estimate of the number of retained salmon when time constraints or 
other duties prevent an observer from counting each fish. Specifically, 
the phrase ``until all salmon have been counted by a NMFS-certified 
observer'' has been revised to read ``until the number of salmon has 
been determined by a NMFS-certified observer''. Accordingly, regulatory 
text at Sec. 672.7(n) and Sec. 675.7(o) has been changed.
    3. In Sec. 675.20, paragraphs (c)(6)(ii) through (iv) are 
redesignated as paragraphs (c)(6)(i)(A) through (C), respectively, and 
paragraphs (c)(6)(v) through (vii) are redesignated as paragraphs 
(c)(6)(ii) through (iv), respectively. Redesignated paragraph 
(c)(6)(i)(A) is revised to require operators of vessels carrying 
observers onboard, and whose fishing operations allow for sorting of 
catch, to retain salmon from different hauls separately and in a manner 
that identifies the haul from which the salmon were taken. This action 
is taken in response to public comment that salmon from different hauls 
should be counted separately to determine possible correlations between 
haul characteristics and salmon bycatch rates. This revision to 
regulatory text will provide NMFS with data that could be used to 
assess observed salmon bycatch rates when other than whole-haul 
sampling is used by the observer.
    4. Regulatory text at Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is 
revised to include the authority to release to the public observer data 
on the number of trawl hauls or fixed gear sets observed onboard a 
vessel during a weekly reporting period, the number of trawl hauls that 
were basket sampled, and the total weight of basket samples taken from 
sampled hauls. This action is taken to respond to public comment 
received on the proposed rule that observed bycatch rates based on 
small sample sizes often can be misleading.
    5. Regulatory text at Sec. 672.27(g)(2) and Sec. 675.27(g)(2) is 
revised to clarify NMFS intent that the observer data collected for 
individual hauls and authorized for release to the public will not be 
identified by vessel name or other information that identifies the 
vessel from which the data were collected.

Response to Comments

    Five letters of comments were received within the comment period 
that ended February 28, 1994. All the letters supported regulations 
implementing Amendment 25 that eliminate the primary halibut PSC limit 
for the BSAI trawl gear fisheries. A summary of comments on the 
regulatory amendments and NMFS's response follows.
    Comment 1. Any action is supported that contributes to the 
reduction of prohibited species bycatch rates and optimal management of 
prohibited species bycatch in all North Pacific fisheries. One means of 
achieving this goal is better collection and assessment of data 
generated by the NMFS Observer Program. Retention is an important first 
step to accurate assessment of salmon bycatch. In addition, NMFS is 
encouraged to investigate the accuracy of estimating prohibited species 
catch in groundfish catches using whole-haul versus basket sampling 
methods.
    Response. NMFS concurs that additional information on salmon 
bycatch is desirable and necessary to develop future management actions 
to address the salmon bycatch problem in the Alaska groundfish trawl 
fisheries. Accordingly, NMFS has approved this final rule to meet this 
need. NMFS intends to use the additional data on salmon bycatch 
collected under this final rule to assess the quality of salmon bycatch 
rate estimates derived from existing observer sampling procedures and 
to provide additional information with which to assess the magnitude of 
salmon bycatch in the Alaska trawl fisheries.
    Comment 2. Proposed regulations prohibiting the discard of salmon 
taken in BSAI groundfish trawl fisheries until the number of salmon is 
determined by a NMFS-certified observer also should apply to GOA trawl 
fisheries. Salmon bycatch rates in the GOA trawl fisheries often equal 
or exceed those in the Bering Sea, and vessels in the GOA typically 
operate with less observer coverage than their BSAI counterparts.
    Response. NMFS acknowledges that the salmon bycatch problem extends 
to the GOA trawl fisheries. However, the Council did not consider 
extending salmon retention criteria to the GOA trawl fisheries, and the 
supporting analyses presented to the Council did not address this 
alternative. The Council's request to NMFS to prepare rulemaking to 
implement mandatory retention of salmon until counted by an observer 
was based on issues associated with chinook salmon bycatch in the BSAI 
trawl fisheries and independent industry initiatives to address the 
chinook salmon bycatch problem in these fisheries. Council support for 
the BSAI program was reinforced after its consideration of the high 
bycatch amounts of chum salmon estimated for the BSAI pollock fishery 
during the 1993 non-pollock roe or ``B'' season.
    Relative to the BSAI trawl fleet, the GOA fleet typically comprises 
smaller vessels with less observer coverage. Therefore, monitoring 
compliance with mandatory salmon retention requirements would be more 
difficult. Fewer GOA processors are required to have 100-percent 
observer coverage relative to BSAI processing operations, because of 
the smaller volume of groundfish processed on a monthly basis. As a 
result, GOA processors would tend to incur greater relative costs 
associated with retaining and freezing salmon until an observer becomes 
available to count retained fish.
    If the BSAI program is determined to be effective in collecting 
additional information on salmon bycatch, and the Council wishes to 
expand this program to the GOA trawl fisheries, NMFS could initiate 
separate rulemaking to extend the salmon retention program to the GOA.
    Comment 3. The intent of the proposed regulatory language at 
Sec. 675.20(c)(6)(vii) is unclear. This language states that all salmon 
must be returned to Federal waters immediately, with a minimum of 
injury, following notice by a NMFS-certified observer that salmon have 
been counted and the collection of any scientific data or biological 
samples has been completed. Why is the term ``minimum of injury'' used 
when all retained salmon likely are dead? What is a reasonable 
definition of the term ``immediately'' for salmon that have been in 
frozen storage at a shoreside facility awaiting the arrival of an 
observer? Can a vessel transport another vessel's salmon bycatch back 
out to Federal waters? After they have been counted by an observer, can 
salmon be disposed of by sending them to a meal plant?
    Response. The FMPs currently state that all prohibited species must 
be returned to the sea with a minimum of injury except when their 
retention is authorized by other applicable law. NMFS recognizes that 
the rationale for existing standards that require prohibited species be 
returned to the sea with a ``minimum of injury'' becomes questionable 
for those prohibited species that obviously are dead, such as salmon 
delivered to shoreside processors for counting by a NMFS-certified 
observer. NMFS believes that this issue is not unique to salmon 
bycatch, and that other prohibited species often are landed shoreside 
by those vessel operators whose fishing operations do not allow for 
effective sorting of catch at sea. At this time, processors are not 
allowed to dispose of prohibited species by sending them to meal 
plants. Meal ultimately is produced for commercial sale, and existing 
regulations are intended to prevent the commercial sale of prohibited 
species. Federal regulations could be amended to allow the grinding of 
prohibited species so they could be more easily disposed of in a manner 
similar to other fish waste under discharge permits issued to 
processors under the Clean Water Act. NMFS believes that rulemaking 
authorizing this manner of disposal of salmon delivered to processors 
in State waters should be considered for all prohibited species, not 
just salmon. A comprehensive approach for assessing and revising 
guidelines for disposal of prohibited species is outside the scope of 
this regulatory action. Therefore, until rulemaking is initiated to 
revise disposal guidelines for all prohibited species, NMFS has 
determined to maintain the proposed regulatory guidelines for disposal 
of salmon after the number of salmon have been determined by a NMFS-
certified observer.
    Under this final rule, salmon retained and delivered to a processor 
by one vessel subsequently can be loaded on to another vessel for 
discard in Federal waters. For purposes of clarifying 
Sec. 675.20(c)(iv), the term ``immediately'' has been changed to ``as 
soon as is practicable'' to better express NMFS's intent for the 
disposal of retained salmon.
    Comment 4. Approved methods of disposing of salmon after the number 
of salmon have been determined by an observer should include 
distribution to foodbanks through authorized nonprofit organizations.
    Response. The authority to retain salmon taken as bycatch in the 
Alaska groundfish trawl fisheries for delivery to an authorized 
distributor for nonprofit foodbank organizations is beyond the scope of 
this action. The Council has requested that NMFS prepare an analysis of 
alternatives for a program that would allow retention of salmon for 
delivery to nonprofit foodbank organizations. The Council is scheduled 
to consider this analysis at its April 1994 meeting.
    Comment 5. The authority for public release of observer data on 
vessel name and prohibited species bycatch amounts or rates at 
Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is supported, but should be 
expanded to include observer data on the number of tows sampled onboard 
a vessel during a weekly reporting period, the number of tows that were 
basket sampled or whole-haul sampled, and the total sample weight of 
basket samples. This is important, because bycatch rates based on small 
sample sizes often can be misleading.
    Response. NMFS concurs. The requested observer data can be provided 
inseason and has been added to Sec. 672.27(g)(1) and Sec. 675.25(g)(1) 
as information that may be released to the public on a weekly basis 
under vessel name. NMFS has further revised the final rule to clarify 
that the authority to release these data applies to both trawl and 
fixed gear fisheries.
    Comment 6. The authority for public release of haul-by-haul data 
authorized at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) should be 
expanded to include the fixed gear fisheries in the GOA and BSAI.
    Response. The intent of the regulatory amendment implemented under 
the referenced regulations is to address the salmon bycatch problem in 
the Alaska trawl fisheries, although the data authorized for release 
also will benefit an assessment of the bycatch problem for other 
prohibited species. The trawl industry petitioned NMFS for the release 
of these data outside of the Council process, and NMFS agreed to 
include in the proposed rule the authority to release these data to 
support independent initiatives by the trawl industry to better define 
the salmon bycatch problem and to take action to address it.
    The release of observer data on haul position and depth posed some 
concern to members of the trawl industry, because of the potential for 
competitive harm. Ultimately, representatives of the trawl industry 
attempted to address this concern by requesting that NMFS not release 
these data for those fisheries that are geographically specific in 
nature, involve a small number of participants, and have relatively 
small quotas.
    NMFS has approved the authority to release vessel names, bycatch 
amounts of salmon, and bycatch rates of other prohibited species on a 
weekly basis for all observed vessels, including those participating in 
the fixed gear fisheries. However, representatives for the fixed gear 
fisheries have not petitioned NMFS for the release of observer data for 
individual sets. Given the potential for competitive harm that could 
result from the release of observer data on the position and depth of 
individual sets in the hook-and-line, pot, or jig gear fisheries, NMFS 
believes that separate regulatory action to implement the authority to 
release these data should be developed in consultation with the Council 
and affected industry members.
    Comment 7. The requirement that all salmon taken as bycatch in the 
BSAI groundfish trawl fisheries be retained until an observer has 
counted each fish and collected appropriate scientific or biological 
samples is supported. No data are available to suggest this requirement 
would increase salmon bycatch mortality, and it is an essential step in 
developing reliable data concerning the actual number of salmon taken 
as bycatch in the trawl fisheries and identifying the stocks of origin 
of salmon taken as incidental catch. The retention procedure should 
require observed vessels whose operations allow sorting to store salmon 
in separate bins on a haul-by-haul basis and to identify the haul(s) to 
which the bin(s) relate. This procedure is necessary to determine 
possible correlations between haul characteristics and salmon bycatch 
rates.
    Response. NMFS concurs and has revised the final rule to require 
operators of observed vessels whose operation allows sorting of catch 
to store salmon from different hauls separately and to identify for the 
observer those hauls associated with retained salmon. In addition to 
being necessary for assessing possible correlations between haul 
characteristics and salmon bycatch rates, this requirement will provide 
data that could be used by NMFS to assess observed salmon bycatch rates 
when other than whole-haul sampling is used by the observer.
    Comment 8. Any exemption for processors not carrying observers from 
the requirement of retaining salmon until the number of salmon is 
determined by a NMFS-certified observer is opposed. If NMFS concludes 
that such exemptions may be necessary, they should be made available by 
the Director, Alaska Region, NMFS (Regional Director), on a case-by-
case basis, upon a showing by the processor that the requirement would 
result in undue expense or difficulty, and that the fisheries served by 
the processor have a low salmon bycatch rate.
    Response. In 1992 and 1993, the pollock fisheries accounted for 91 
percent and 97 percent, respectively, of the total salmon bycatch in 
the BSAI trawl fisheries. Mothership and shoreside processors receiving 
pollock from vessels participating in this fishery typically are large 
operations that process a high volume of fish. In 1993, 13 mothership 
and shoreside processors participated in the pollock fishery during at 
least 1 week. Twelve of these processors received over 500 mt of 
groundfish during the months that they participated in the pollock 
fishery and were required to obtain either 30-percent or 100-percent 
observer coverage. One processor received less than 500 mt of 
groundfish during the single month it participated in the pollock 
fishery and was exempt from observer coverage. This processor accounted 
for less than .003 percent of the total pollock harvest.
    Processors that receive less than 500 mt of groundfish during a 
month may never be required to obtain observer coverage during a year 
if they maintain monthly groundfish processing at this low level. Given 
that unobserved processors accounted for less than 1 percent of the 
1993 pollock catch and that 97 percent of the 1993 salmon bycatch 
occurred in the pollock fishery, NMFS maintains that providing 
authority to the Regional Director to exempt these processors is not 
necessary because these processors are not now observed. If the Council 
determines in the future that small mothership and shoreside operations 
should be subject to observer requirements, then a separate regulatory 
amendment can be initiated to increase observer coverage requirements 
for these operations.
    Pending approval of the proposed North Pacific Fisheries Research 
Plan adopted by the Council at its June 1992 meeting, observer coverage 
requirements will be determined annually under regulations implementing 
the second year of the Research Plan, currently scheduled for 1996. If 
necessary, an increase in observer coverage of small processing 
operations could be considered under this annual process to obtain 
additional data on salmon bycatch associated with these operations.
    Comment 9. No circumstances likely exist under which release of 
haul-by-haul observer data listed in the proposed rule for the Alaska 
trawl fisheries other than for rockfish, Greenland turbot, and Atka 
mackerel could reasonably be expected to cause substantial competitive 
harm. Fisheries other than those identified generally take place on 
well-known fishing grounds, and at times of the year when a substantial 
portion of the trawl fleet is fishing. Because release of information 
concerning target species catch per unit of effort is not proposed for 
release, it is highly unlikely that knowledge of individual haul 
locations or bycatch rates would result in competitive harm to the 
party providing the information. In the rare circumstance where that 
may be possible, the proposed petition procedure should provide 
adequate protection.
    Response. Consistent with procedures set out at 15 CFR 4.7(h) for 
the disclosure of commercial or financial information, NMFS has 
approved regulations for the release to the public of observer data 
collected onboard trawl vessels participating in a directed fishery for 
groundfish other than Greenland turbot, rockfish, or Atka mackerel. In 
taking this action, NMFS has acknowledged that the disclosure of 
observer data on prohibited species bycatch and associated haul 
location and depth information could possibly be expected to divulge 
information on specific fishing operations in a manner that would 
result in substantial competitive harm.
    Comment 10. The authority for public release of haul-by-haul 
observer data listed at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) of the 
proposed rule should be expanded to include the Greenland turbot trawl 
fishery, given the serious problem with halibut bycatch experienced in 
this fishery. The proposed regulation does not require the release of 
data from all fisheries to which it applies. If there is no consensus 
that data from a particular fishery should be released, the Regional 
Director can weigh objections and act accordingly. It is thus 
appropriate to structure the authority rather broadly at this time to 
avoid having to initiate new rulemaking on a fishery-by-fishery basis.
    Response. NMFS has acknowledged that the release of observer data 
on a haul-by-haul basis could divulge information on specific fishing 
operations in a manner that would result in substantial competitive 
harm. Except as provided by pre-notification procedures set out at 15 
CFR 4.7(h), commercial or financial information cannot be released 
under the Freedom of Information Act (5 U.S.C. 552(b)(4)). The 
regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) satisfy this 
pre-notification procedure, except for the Greenland turbot, Atka 
mackerel and rockfish fisheries. At the request of representatives for 
the Alaska groundfish trawl industry, these exceptions were included in 
the proposed rule because of the greater potential for substantial 
competitive harm that would result from the release of observer data on 
haul locations, given that these fisheries are conducted by a 
relatively small number of vessels, involve relatively small amounts of 
quota, and are geographically specific in nature. NMFS has determined 
to continue to exempt these fisheries from release of haul-by-haul 
observer data under this final rule, given general concerns about the 
release of these data and continued industry support for the release of 
haul-by-haul observer data collected for all other trawl fisheries, 
particularly those that experience the highest salmon bycatch rates. 
Observer data collected on board vessels participating in the Greenland 
turbot fishery still could be released under the Freedom of Information 
Act, provided that NMFS provides written notice to each vessel operator 
and owner of a request for disclosure and describes the nature of the 
information requested for public release.
    Comment 11. The preamble to the proposed rule implies that NMFS may 
limit the release of haul-by-haul data to those collected from 1992 
onward. This restriction is inappropriate. Data collected prior to 1992 
may be a valuable source of bycatch pattern information and should be 
released.
    Response. NMFS intent for the release of specified observer data on 
a haul-by-haul basis is to facilitate research by industry on salmon 
and other prohibited species bycatch that would lead to more informed 
decisions by vessel operators on alternative fishing practices to 
minimize bycatch rates of these species. Pending the availability of 
staff resources, NMFS concurs in the release of observer data specified 
in regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) for all prior 
years where available. NMFS has taken this position after considering 
(1) assertions by members of the industry that historic data are 
necessary to better support independent industry initiatives, to 
identify bycatch patterns, and to better address the bycatch problem in 
the groundfish trawl fisheries, and (2) the potential competitive harm 
resulting from the release of observer data becomes increasingly 
diminished relative to historic data.
    Comment 12. Regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) 
should be revised to clarify that the specified observer data are not 
released to the public under vessel name.
    Response. NMFS has revised the final rule to clarify the intent of 
NMFS that haul-by-haul observer data will not identify the vessel from 
which the data were collected.
    Comment 13. The intent of proposed regulatory language at 
Sec. 672.7(n) is unclear.
    Response. Section 672.7(n) prohibits vessel operators who deliver 
BSAI groundfish catch to GOA processors from discarding salmon until 
the salmon are counted by a NMFS-certified observer. Similarly, GOA 
processors are prohibited from discarding salmon taken as bycatch in a 
BSAI trawl fishery until an observer has counted each fish, unless the 
processor is exempt from observer coverage. The intent of this 
regulation is to ensure that salmon incidentally taken in the BSAI 
trawl fisheries are counted by a NMFS-certified observer if the 
associated groundfish catch is delivered to a GOA processor and to 
discourage vessel operators who harvest BSAI groundfish from delivering 
to GOA processors for the sole purpose of avoiding costs associated 
with retaining salmon under regulations at Sec. 675.20(c) (3) and (6).
    Comment 14. In the proposed rule at Sec. 675.20(c)(6)(i), the 
phrase ``until all salmon have been counted by a NMFS-certified 
observer'' should be revised to read ``until the number of salmon has 
been determined by a NMFS-certified observer''. This revision would 
allow the NMFS Observer Program to develop guidelines for observers 
that provide alternative methods for estimating the number of salmon 
that have been retained for enumeration. These guidelines would be 
especially important if the number of salmon retained by a vessel or 
processor is large and salmon cannot be individually counted without 
jeopardizing other observer duties.
    Response. NMFS is preparing written instructions to observers for 
purposes of complying to the extent practicable with this final rule. 
These instructions will include guidelines for observers for obtaining 
an estimate of the number of retained salmon when time constraints or 
other observer duties prevent an observer from counting each fish. NMFS 
agrees that the suggested revision to regulatory text clarifies NMFS 
intent and the final rule has been changed accordingly.
    Comment 15. Based on information presented in the EA/RIR, the 
proposed rule requiring mandatory retention of salmon until counted by 
a NMFS-certified observer is unnecessary for proper scientific 
management of salmon stocks, but instead is intended to meet a 
political demand that activity of the groundfish fleet be curtailed. If 
NMFS is adequately accounting for the take of salmon bycatch in the 
North Pacific fisheries, it is unwise to burden observers with 
additional duties for political reasons when observers could spend that 
time ensuring the accuracy of their samples for all species for which 
they are charged with gathering data.
    Response. No information exists to indicate that the current level 
of salmon bycatch in the Alaska trawl fisheries presents critical 
conservation issues; however, low salmon returns for Western Alaska 
stocks indicate that the potential exists for conservation concerns.
    NMFS estimates salmon bycatch numbers in the Alaska groundfish 
fisheries using observed bycatch rates, although NMFS has expressed the 
opinion that observed bycatch rates could be improved if larger sample 
sizes were possible. The final rule would provide data to compare 
observed salmon bycatch rates with those derived through the mandatory 
salmon retention requirements for purposes of improving the overall 
estimate of salmon bycatch in the Alaska trawl fisheries.
    NMFS shares the concern about observers being burdened with 
additional obligations, especially if new obligations jeopardize the 
collection-of-data on which the management of fishery resources is 
based. Nonetheless, NMFS has approved regulations requiring mandatory 
retention of salmon until a NMFS-certified observer has determined the 
number of salmon retained and completed the collection of any 
scientific data or biological samples from the retained fish. This 
action is necessary to provide additional information to management 
agencies and the industry on which to base the development of practical 
management measures to address the salmon bycatch problem. NMFS has 
determined that this information is sufficiently important to include 
its collection among the duties of NMFS-certified observers to the 
extent possible. NMFS is preparing written guidelines for observers to 
facilitate the collection of salmon data without serious jeopardy to 
other observer duties.

Classification

    NMFS prepared an RIR that concludes that this rule will not have a 
significant economic impact on a substantial number of small entities. 
A copy of this analysis is available from the Council (see ADDRESSES).
    This final rule has been determined to be not significant under 
E.O. 12866.

List of Subjects in 50 CFR Parts 672 and 675

    Fisheries, Reporting and recordkeeping requirements.

    Dated: April 14, 1994.
Nancy Foster,
Deputy 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. 672.7, paragraph (o) is added to read as follows:


Sec. 672.7  Prohibitions.

* * * * *
    (o) Discard any salmon taken incidental to a directed fishery for 
Bering Sea and Aleutian Islands management area groundfish by vessels 
using trawl gear until notified by a NMFS-certified observer that the 
number of salmon has been determined and the collection of any 
scientific data or biological samples has been completed as provided at 
50 CFR 675.20(c)(6).
    3. In Sec. 672.27, paragraph (g) is added to read as follows:


Sec. 672.27  Observers.

* * * * *
    (g) Release of observer data to the public. (1) The following 
information collected by observers for each catcher processor and 
catcher vessel during any weekly reporting period may be made available 
to the public:
    (i) Vessel name and Federal permit number;
    (ii) Number of chinook salmon and ``other salmon'' observed;
    (iii) The ratio of total round weight of halibut or Pacific herring 
to the total round weight of groundfish in sampled catch;
    (iv) The ratio of number of king crab or C. bairdi Tanner crab to 
the total round weight of groundfish in sampled hauls;
    (v) The number of observed trawl hauls or fixed gear sets;
    (vi) The number of trawl hauls that were basket sampled; and
    (vii) The total weight of basket samples taken from sampled trawl 
hauls.
    (2)(i) The information listed in paragraphs (g)(2)(i) (A) through 
(M) of this section and collected by observers from observed hauls 
onboard vessels using trawl gear to participate in a directed fishery 
for groundfish other than for rockfish, Greenland turbot, or Atka 
mackerel may be made available to the public:
    (A) Date;
    (B) Time of day gear is deployed;
    (C) Latitude and longitude at beginning of haul;
    (D) Bottom depth;
    (E) Fishing depth of trawl;
    (F) The ratio of the number of chinook salmon to the total round 
weight of groundfish;
    (G) The ratio of the number of other salmon to the total round 
weight of groundfish;
    (H) The ratio of total round weight of halibut to the total round 
weight of groundfish;
    (I) The ratio of total round weight of herring to the total round 
weight of groundfish;
    (J) The ratio of the number of king crab to the total round weight 
of groundfish;
    (K) The ratio of the number of C. bairdi Tanner crab to the total 
round weight of groundfish;
    (L) Sea surface temperature (where available); and
    (M) Sea temperature at fishing depth of trawl (where available).
    (ii) The identity of the vessels from which the data in paragraph 
(g)(2)(i) of this section are collected will not be released.
    (3) In exceptional circumstances, the owners and operators of 
vessels may provide to the Regional Director written justification at 
the time observer data are submitted or within a reasonable time 
thereafter, that disclosure of the information listed in paragraph 
(g)(1) or (g)(2) of this section could reasonably be expected to cause 
substantial competitive harm. The determination whether to disclose the 
information will be made pursuant to 15 CFR 4.7.

PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA

    4. The authority citation for part 675 continues to read as 
follows:

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


Sec. 675.2  [Amended]

    5. In Sec. 675.2, the definition of ``Bycatch Limitation Zone 2H'' 
is removed.
    6. In Sec. 675.7, paragraph (p) is added to read as follows:


Sec. 675.7  Prohibitions.

* * * * *
    (p) Discard any salmon taken incidental to a directed fishery for 
groundfish by vessels using trawl gear until notified by a NMFS-
certified observer that the number of salmon has been determined and 
the collection of any scientific data or biological samples has been 
completed as provided at Sec. 675.20(c)(6).
    7. In Sec. 675.20, paragraphs (c)(3) and (4) are revised and 
paragraph (c)(6) is added to read as follows:


Sec. 675.20  General limitations.

* * * * *
    (c) * * *
    (3) The operator of each vessel regulated under this part must sort 
its catch as soon as possible after retrieval of the gear and, except 
as provided under paragraph (c)(6) of this section, must return all 
prohibited species or parts thereof to the sea immediately, with a 
minimum of injury, regardless of its condition, after allowing for 
sampling by an observer if an observer is onboard.
    (4) Except as provided under paragraph (c)(6) of this section, it 
will be a rebuttable presumption that any prohibited species retained 
onboard a fishing vessel regulated under this part was caught and 
retained in violation of this section.
* * * * *
    (6) Retention of salmon. (i) Except as provided in paragraph 
(c)(6)(ii) of this section, the operator of a vessel and the manager of 
a shoreside processing operation must not discard any salmon taken 
incidental to a directed fishery for groundfish by vessels using trawl 
gear until the number of salmon has been determined by a NMFS-certified 
observer and the collection of any scientific data or biological 
samples from the salmon has been completed.
    (A) Operators of vessels carrying observers onboard and whose 
fishing operations allow for sorting of groundfish catch for salmon 
must retain all salmon bycatch from each haul in a separate bin or 
other location that allows an observer free and unobstructed physical 
access to the salmon to count each fish and collect any scientific data 
or biological samples. Salmon from different hauls must be retained 
separately in a manner that identifies the haul from which the salmon 
were taken.
    (B) Operators of vessels not carrying observers onboard or whose 
fishing operations do not allow for sorting of groundfish catch for 
salmon must ice, freeze, or store in a refrigerated saltwater tank all 
salmon taken as bycatch in trawl operations for delivery to the 
processor receiving the vessel's groundfish catch.
    (C) Processors receiving groundfish harvested in a directed fishery 
for groundfish using trawl gear must retain all salmon delivered by 
each trawl vessel during a weekly reporting period in separate bins 
marked with the vessel's name and ADF&G fish ticket number(s) for each 
delivery until a NMFS-certified observer has counted each salmon and 
collected any scientific data or biological samples from the salmon 
delivered to the processor by that vessel. Processors without an 
observer present must store whole salmon in an iced or frozen state 
until an observer is available to count each fish. Salmon must be 
stored at a location that allows an observer free and unobstructed 
physical access to each salmon.
    (ii) Mothership processor vessels and shoreside processing 
facilities that are exempt from obtaining observer coverage during a 
month under Sec. 675.25 or Sec. 672.27 of this chapter are exempt from 
mandatory retention of salmon under this paragraph (c)(6).
    (iii) Operators of vessels and managers of shoreside processing 
operations that are required to retain salmon under paragraph (c)(6)(i) 
of this section must designate and identify to the NMFS-certified 
observer onboard the vessel or at the shoreside operation a crew person 
or employee to be responsible for sorting, retention, and storage of 
salmon consistent with this paragraph (c)(6). Upon the request of the 
NMFS-certified observer, the designated crew person or employee also is 
responsible for counting salmon and taking biological samples from 
retained salmon under the direction of the observer.
    (iv) Salmon must be returned to Federal waters as soon as is 
practicable, with a minimum of injury, regardless of condition, 
following notice by a NMFS-certified observer that the number of salmon 
has been determined and the collection of any scientific data or 
biological samples has been completed.
    8. In Sec. 675.21, paragraphs (a)(4) and (c)(1)(iii) are removed; 
paragraphs (a)(5) through (a)(7) are redesignated as paragraphs (a)(4) 
through (a)(6), respectively; paragraph (c)(1)(iv) is redesignated as 
paragraph (c)(1)(iii); and paragraphs (b)(1) introductory text, 
(b)(2)(i) and newly redesignated paragraphs (a)(4) and (c)(1)(iii) are 
revised to read as follows:


Sec. 675.21   Prohibited species catch (PSC) limitations.

    (a) * * *
    (4) The PSC limit of Pacific halibut caught while conducting any 
trawl fishery for groundfish in the Bering Sea and Aleutian Islands 
Management Area during any fishing year is an amount of Pacific halibut 
equivalent to 3,775 mt of halibut mortality.
* * * * *
    (b) * * * (1) Apportionment to trawl fishery categories. NMFS, 
after consultation with the Council, will apportion each PSC limit set 
forth in paragraphs (a) (1) through (5) of this section into bycatch 
allowances for fishery categories specified in paragraph (b)(1)(iii) of 
this section, based on each category's proportional share of the 
anticipated incidental catch during a fishing year of prohibited 
species for which a PSC limit is specified and the need to optimize the 
amount of total groundfish harvested under established PSC limits. The 
sum of all bycatch allowances of any prohibited species will equal its 
PSC limit.
* * * * *
    (2) * * * (i) NMFS, after consultation with the Council, may 
apportion the halibut PSC limit for non-trawl gear set forth in 
paragraph (a)(6) of this section into bycatch allowances for fishery 
categories specified in paragraph (b)(2)(ii) of this section, based on 
each category's proportional share of the anticipated bycatch mortality 
of halibut during a fishing year and the need to optimize the amount of 
total groundfish harvested under the non-trawl halibut PSC limit. The 
sum of all halibut bycatch allowances will equal the halibut PSC limit 
specified in paragraph (a)(6) of this section.
* * * * *
    (c) * * *
    (1) * * *
    (iii) Halibut bycatch allowance. If, during the fishing year, the 
Regional Director determines that U.S. fishing vessels participating in 
any of the trawl fishery categories listed in paragraphs (b)(1)(iii) 
(B) through (F) of this section in the Bering Sea and Aleutian Islands 
Management Area will catch the halibut bycatch allowance, or seasonal 
apportionment thereof, specified for that fishery category under 
paragraph (b) of this section, NMFS will publish in the Federal 
Register the closure of the entire Bering Sea and Aleutian Islands 
management area to directed fishing for the species and/or species 
group that comprises that fishery category (which together constitute a 
species or species group for purposes of the directed fishing 
standards) for the remainder of the year or for the remainder of the 
season, except that when a bycatch allowance, or seasonal apportionment 
thereof, specified for the pollock/Atka mackerel/``other species'' 
fishery category is reached, only directed fishing for pollock is 
closed to trawl vessels using non-pelagic trawl gear.
* * * * *
    9. In Sec. 675.25, paragraph (g) is added to read as follows:


Sec. 675.25   Observers.

* * * * *
    (g) Release of observer data to the public. (1) The following 
information collected by observers for each catcher processor and 
catcher vessel during any weekly reporting period may be made available 
to the public:
    (i) Vessel name and Federal permit number;
    (ii) Number of chinook salmon and ``other salmon'' observed;
    (iii) The ratio of total round weight of halibut or Pacific herring 
to the total round weight of groundfish in sampled catch;
    (iv) The ratio of number of king crab or C. bairdi Tanner crab to 
the total round weight of groundfish in sampled hauls;
    (v) The number of observed trawl hauls or fixed gear sets;
    (vi) The number of trawl hauls that were basket sampled; and
    (vii) The total weight of basket samples taken from sampled trawl 
hauls.
    (2)(i) The information listed in paragraphs (g)(2)(i) (A) through 
(M) of this section and collected by observers from observed hauls 
onboard vessels using trawl gear to participate in a directed fishery 
for groundfish other than for rockfish, Greenland turbot, or Atka 
mackerel may be made available to the public:
    (A) Date;
    (B) Time of day gear is deployed;
    (C) Latitude and longitude at beginning of haul;
    (D) Bottom depth;
    (E) Fishing depth of trawl;
    (F) The ratio of the number of chinook salmon to the total round 
weight of groundfish;
    (G) The ratio of the number of other salmon to the total round 
weight of groundfish;
    (H) The ratio of total round weight of halibut to the total round 
weight of groundfish;
    (I) The ratio of total round weight of herring to the total round 
weight of groundfish;
    (J) The ratio of the number of king crab to the total round weight 
of groundfish;
    (K) The ratio of the number of C. bairdi Tanner crab to the total 
round weight of groundfish;
    (L) Sea surface temperature (where available); and
    (M) Sea temperature at fishing depth of trawl (where available).
    (ii) The identity of the vessels from which the data in paragraph 
(g)(2)(i) of this section are collected will not be released.
    (3) In exceptional circumstances, the owners and operators of 
vessels may provide to the Regional Director written justification at 
the time observer data are submitted or within a reasonable time 
thereafter, that disclosure of the information listed in paragraph 
(g)(1) or (g)(2) of this section could reasonably be expected to cause 
substantial competitive harm. The determination whether to disclose the 
information will be made pursuant to 15 CFR 4.7.
[FR Doc. 94-9482 Filed 4-19-94; 8:45 am]
BILLING CODE 3510-22-P