[Federal Register Volume 62, Number 232 (Wednesday, December 3, 1997)]
[Rules and Regulations]
[Pages 63880-63891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31711]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 970611133-7263-02; I.D. 052997B]
RIN 0648-AJ36


Fisheries of the Exclusive Economic Zone Off Alaska; Improved 
Retention/Improved Utilization

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 implement Amendment 49 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP). This final rule requires all vessels 
fishing for groundfish in the Bering Sea and Aleutian Islands 
Management Area (BSAI) to retain all pollock and Pacific cod beginning 
January 3, 1998, and all rock sole and yellowfin sole beginning January 
1, 2003. This final rule also establishes a 15-percent minimum 
utilization standard for all at-sea processors beginning January 3, 
1998, for pollock and Pacific cod and, beginning January 1, 2003, for 
rock sole and yellowfin sole. This action is necessary to respond to 
the fishing industry's socioeconomic needs that have been identified by 
the North Pacific Fishery Management Council (Council) and is intended 
to further the goals and objectives of the FMP.

DATES: Effective January 3, 1998.

ADDRESSES: Copies of Amendment 49 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action may be obtained from NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori J. Gravel. Send comments regarding 
burden estimates or any other aspect of the data requirements, 
including suggestions for reducing the burdens, to NMFS and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, DC 20503, Attn: NOAA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the 
exclusive economic zone of the BSAI are managed by NMFS under the FMP. 
The FMP was prepared by the Council under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Regulations 
governing the groundfish fisheries of the BSAI appear at 50 CFR parts 
600 and 679.
    At its September 1996 meeting, the Council adopted Amendment 49 to 
the FMP and recommended that NMFS prepare a rulemaking to implement the 
amendment. A notice of availability of Amendment 49 was published in 
the Federal Register on June 5, 1997 (62 FR 30835), and invited comment 
on the amendment through August 4, 1997. A proposed rule to implement 
Amendment 49 was published in the Federal Register on June 26, 1997 (62 
FR 34429). Comments on the proposed rule were invited through August 
11, 1997. A total of twelve letters of comment on the amendment and/or 
the proposed rule were received. Nine letters of comment were received 
by the end of the comment period on Amendment 49. Of these nine, two 
comments opposed Amendment 49, and seven comments supported approval 
but recommended changes to the proposed rule. Of the three letters of 
comment received after the end of the comment period on the amendment 
but before the end of the comment period on the proposed rule, two 
opposed Amendment 49 and implementation of the proposed rule. One 
supported approval of Amendment 49 but recommended changes to the 
proposed rule. Comments on both the amendment and the proposed rule are 
summarized and responded to in the Response to Comments section below.
    Upon reviewing the reasons for Amendment 49 to the FMP and the 
comments on the proposed rule to implement it, NMFS determined that 
this action is necessary for the conservation and management of the 
groundfish fishery of the BSAI. NMFS approved Amendment 49 on September 
3, 1997, under section 304(a) of the Magnuson-Stevens Act. Additional 
information on this action may be found in the preamble to the proposed 
rule and in the EA/RIR/FRFA.
    The Council also adopted a parallel Amendment 49 to the Fishery 
Management Plan for Groundfish of the Gulf of Alaska (GOA) in June 1997 
and recommended that NMFS prepare a rulemaking to extend the Improved

[[Page 63881]]

Retention/Improved Utilization (IR/IU) program to the GOA. A proposed 
rule to implement Amendment 49 in the GOA was published in the Federal 
Register on August 18, 1997 (62 FR 43977) with comments invited through 
October 2, 1997.

Response to Comments

    Comment 1: The IR/IU program will severely disadvantage small 
entities to the benefit of large at-sea and shoreside processors. These 
impacts will be highly allocative and are an inappropriate result of an 
FMP amendment that has no conservation purpose but is intended solely 
to respond to the socioeconomic needs of the fishing industry.
    Response: The purpose of this amendment is to reduce discards. The 
EA/RIR/FRFA prepared for Amendment 49 concluded that the action could 
impose significant economic impacts on a substantial number of small 
entities. The extent of the impact for a particular operation will be 
directly proportional to the level of discards of the four IR/IU 
species. Vessels or fisheries that currently discard IR/IU species at 
high rates will face a substantially greater burden than vessels or 
fisheries with lower discard rates of IR/IU species. The impact on a 
particular operation also is expected to vary inversely with the size 
and configuration of the operation, with larger processors more likely 
to have the space and infrastructure necessary to retain and process 
IR/IU species. Catcher/processors face greater space constraints than 
onshore processors, and are limited in their ability to expand due to 
vessel moratorium, license limitation, and U.S. Coast Guard load line 
requirements. As a result, the impacts of the IR/IU program are 
expected to fall most heavily on catcher/processors, especially smaller 
factory trawlers that lack the capacity to produce fishmeal.
    During development of Amendment 49, the Council considered and 
rejected alternatives that might have mitigated impacts on smaller 
factory trawlers. Alternatives that would have established exemptions 
or phase-in periods based on vessel size were rejected because they 
would have diluted expected reductions in bycatch and discards and 
because they were thought to favor sectors of the industry with high 
discard rates. The Council believed that an inevitable and appropriate 
consequence of any discard reduction program is that the compliance 
burden would be proportionate to the current bycatch and discard rate 
of a particular operation.
    NMFS currently is assisting with industry efforts to develop more 
selective fishing gear and fishing techniques to reduce the adverse 
economic impacts of Amendment 49. NMFS approved a large-scale fishing 
experiment in the BSAI during August 1997 to test experimental trawl 
gear designed to reduce pollock bycatch in flatfish trawl fisheries. 
Initial results from the experiment have been promising and will be 
made available to the public in late 1997. These and other efforts may 
assist the industry in significantly reducing the effects of Amendment 
49 on certain trawl fisheries. Amendment 49 provides incentives for the 
Alaska groundfish industry to develop innovative solutions for reducing 
bycatch that also could be applicable to other fisheries throughout the 
United States and the world.
    Comment 2: The EA/RIR/IRFA does not calculate net economic benefits 
or contain a cost benefit analysis as required under E.O. 12866.
    Response: The Office of Information and Regulatory Affairs of the 
Office of Management and Budget has concurred with NMFS' determination 
that this rule is not significant for purposes of Executive Order 
12866. Accordingly, the requirements of section 6(a)(3)(B) and (C), 
e.g., formal benefit/cost analysis, are not applicable to this 
regulatory action. However, the requirements of section 1(b), The 
Principles of Regulation, are applicable, including principle 6 which 
requires ``each agency [to] assess both the costs and the benefits of 
the intended regulation and recognizing that some costs and benefits 
are difficult to quantify, propose, or adopt a regulation only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs.'' NMFS has fully complied with this requirement.
    NMFS has noted repeatedly during the 4 years of analysis for 
Amendment 49 that the cost data necessary to conduct a rigorous, 
quantitative net benefit analysis are not available. When the industry 
has been invited to provide such data, it has declined to do so. 
Therefore, NMFS prepared an analysis on the basis of the best available 
scientific information. This largely gross revenue analysis was 
supplemented with qualitative assessments of the probable response of 
the affected sectors, the probable environmental response, as well as 
the potential price and market response, to the proposed action. Review 
and advice was sought from the Council's Advisory Panel and Scientific 
and Statistical Committee as well as other experts, from within the 
industry and outside the industry, in an effort to test the conclusions 
of the analysis against their respective experience and expertise. 
Given the limitations on data, these experts consistently affirmed the 
analytical approach as well as the findings of the analysis. The EA/
RIR/FRFA meets the rigor with which benefits and costs of amendments to 
the FMP have been analyzed, historically.
    Comment 3: The IR/IU program may not satisfy Magnuson-Stevens Act 
provisions that require management programs ``to the extent practicable 
and in the following priority--(A) minimize bycatch; and (B) minimize 
the mortality of bycatch which cannot be avoided.'' If no restrictions 
are placed on the production of fishmeal, many operations will have 
little incentive to reduce their bycatch of undersize fish and unwanted 
species. To satisfy this requirement, the program must demonstrate that 
such reductions are the result of increased avoidance of the types of 
unwanted pollock, Pacific cod, rock sole, and yellowfin sole that 
fishermen currently harvest. If the proposed program simply causes 
industry to retain and use bycatch without increasing the avoidance of 
these fish, the statutory requirement to minimize or avoid bycatch will 
remain unfulfilled.
    Response: The Magnuson-Stevens Act defines the term ``bycatch'' as 
``fish which are harvested in a fishery, but which are not sold or kept 
for personal use, and includes economic discards and regulatory 
discards.'' Because the IR/IU program requires 100 percent retention of 
the four IR/IU species, bycatch of these species, as defined in the 
Magnuson-Stevens Act, will largely be eliminated in the groundfish 
fisheries of the BSAI.
    With respect to the issue of ``avoidance,'' the IR/IU program will 
provide significant incentives for all sectors of the industry to avoid 
unwanted harvest of IR/IU species. While operations that have the 
capacity to produce fishmeal may face less immediate incentives to 
avoid unwanted harvest of IR/IU species, the EA/RIR/FRFA concluded that 
the IR/IU program will provide an incentive for all sectors of the 
industry, including those with fishmeal processing capacity, to avoid 
the unwanted harvest of IR/IU species. This is so because processing 
fishmeal draws resources away from the production of higher value 
products. However, most catcher/processors and motherships with 
fishmeal processing capacity were designed to operate in the midwater 
pollock fishery. When participating in that fishery, these vessels 
already retain nearly 100 percent of their pollock and have little 
unwanted harvest of other groundfish

[[Page 63882]]

species. Consequently, the IR/IU program is expected to have less 
impact on these operations.
    Operations that participate in less selective bottom trawl 
fisheries and that do not have the capacity to produce fish meal will 
have a significant incentive to avoid the harvest of unwanted or un-
targeted IR/IU species due to the cost of holding less valuable species 
in lieu of more valuable species. The Council expects that the economic 
incentive produced by the IR/IU program will generate innovative gear 
and fishing techniques as operators develop methods to comply with full 
retention requirements in a cost-effective manner. Currently, an 
association of factory trawlers configured for head-and-gut (H&G) 
processing is testing experimental fishing gear designed to reduce 
unwanted harvests of pollock and Pacific cod in flatfish fisheries.
    The Council considered and rejected various proposals to limit 
production of fishmeal. Such proposals were considered to be 
unreasonably restrictive and of questionable benefit. A limit on 
fishmeal production would impose substantial additional costs on 
operations that have developed fishmeal plants for the purpose of 
processing fish waste, yet such limits would not increase benefits to 
the nation.
    Comment 4: Section 313(f) of the Magnuson-Stevens Act requires that 
in implementing section 303(a)(11), the Council shall ``submit 
conservation and management measures to lower, on an annual basis, for 
a period of not less than 4 years, the total amount of economic 
discards occurring in the fisheries under its jurisdiction.'' If the 
proposed IR/IU program is to satisfy this requirement, it must meet two 
criteria. First it must demonstrate annual reductions in the total 
amount of economic discards over a 4-year period. The proposed IR/IU 
program will result in a 1-year reduction in economic discards of 
pollock and Pacific cod, with no further reductions scheduled until 5 
years later when a one time reduction in rock sole and yellowfin sole 
will be required. To satisfy the statutory requirement, the Council 
must identify where and how reductions in economic discards are to 
occur in years two, three, and four.
    Response: See response to comment 3. The IR/IU program prohibits 
economic discards of pollock and Pacific cod beginning January 1, 1998, 
making additional reductions unnecessary for those species. With 
respect to bycatch of other species, the IR/IU program is but one 
element of the Council and NMFS's ongoing efforts to reduce bycatch and 
is not intended to reduce all forms of bycatch occurring in the 
groundfish fisheries off Alaska. Other existing bycatch reduction 
programs include time and area closures, prohibited species catch 
limits, gear restrictions, support for gear research, and the vessel 
incentive program. Additional bycatch reduction programs are also under 
consideration by the Council.
    Comment 5: The IR/IU proposal does not meet the goals identified by 
the Council's problem statement. Amendment 49 will fail to meet the 
Council's first goal to assure the long-term health of the fish stocks. 
The EA/RIR/IRFA concludes that the program, as designed, will fail to 
provide any conservation or positive environmental impact while most 
likely resulting in a decrease of long-term economic benefits to the 
nation. Of the industry sectors operating in the North Pacific, only 
the pollock and crab fleets lack a long-term stable fisheries-based 
economy due to limited stocks. This plan does nothing to address the 
waste of crab in the directed crab fisheries and will simply encourage 
more meal production rather than increase the supply of pollock 
available for surimi and fillet production.
    Amendment 49 also will fail to meet the Council's second goal: 
reducing bycatch, minimizing waste, and improving utilization of fish 
resources. While some short attention was paid to defining waste, the 
EA/RIR/IRFA did not sufficiently analyze the real question raised by 
the program: Will we expend more resources and receive less benefit 
from our fish resources by implementing the proposal? The proposed IR/
IU program will encourage continued economic loss and waste by (1) 
allowing fish that are currently discarded to be turned into meal, and 
(2) encouraging the use of resources to produce products worth less 
than the cost of production.
    Response: See response to comments 3 and 4. Amendment 49 is only 
one of many efforts by the Council to reduce bycatch and ensure the 
long-term health of fish stocks. The Council is considering other 
efforts to reduce groundfish and crab bycatch including time and area 
closures, prohibited species catch limits, research into more selective 
fishing gear, and a vessel incentive program. The EA/RIR/FRFA prepared 
for Amendment 49 concluded that the program would provide a net benefit 
to the nation through a reduction in discards and improved utilization 
of species once they are harvested. The Council concurred in this 
conclusion as demonstrated by its unanimous vote to adopt Amendment 49.
    Comment 6: While both of NMFS's Federal Register notices and the 
EA/RIR/IRFA analysis conclude that there will be no environmental 
benefit resulting from Amendment 49, Council on Environmental Quality 
(CEQ) regulations implementing NEPA still require the preparation of an 
environmental impact statement (EIS) for this major Federal action. CEQ 
regulations state that events which trigger an EIS include such 
indirect effects as changes in the use of ecosystems, and changes in 
historic and social effects, whether or not they are indirect or 
cumulative (40 CFR 1508.8(b)). An action also is significant when the 
effect on the human environment is highly controversial (40 CFR 
1508.27(b)(4)) or is precedent setting (40 CFR 1508.27(b)(6)). The fact 
that the primary stated goal of the program is to avoid public censure 
of ``waste'' at the national level implies that this proposal is 
controversial. The EA/RIR/IRFA finds that the IR/IU program will 
significantly disadvantage an historic user group and is even intended 
solely for the purpose of meeting social needs. It certainly stands to 
establish a precedent for the nation. In other words, the EA/RIR/IRFA's 
findings clearly and unambiguously demonstrate that the IR/IU program 
is a major Federal action significantly impacting the human 
environment; therefore NEPA requires the preparation of an EIS.
    Response: NMFS has determined that Amendment 49 will not affect 
significantly the quality of the human environment. Therefore, the 
preparation of an EIS on the final action is not required under section 
102(2)(c) of NEPA or CEQ's implementing regulations. This finding of no 
significant impact is contained in the EA/RIR/IRFA for Amendment 49. 
Nevertheless, NMFS is currently preparing a broader EIS on the 
groundfish fisheries of the BSAI. This EIS will consider the impacts of 
the current groundfish management system including the IR/IU program.
    Comment 7: The IRFA was flawed in that several reasonable 
traditional alternatives, currently used by NMFS and the State, were 
summarily rejected without discussion by the Council and were not 
analyzed in the IRFA. The Regulatory Flexibility Act (RFA) requires a 
description of ``any significant alternatives . . . which minimize any 
significant economic impact'' (5 U.S.C. 603(c)). The IRFA doesn't even 
mention an industry proposal to exempt unmarketable undersize fish from 
the proposed rule. Minimum size limits are currently used

[[Page 63883]]

in the halibut, crab, herring, and salmon fisheries. The Council has 
refused to consider industry proposals to only require retention of 
fish greater than 1.0 or 1.5 lb citing enforcement concerns. A minimum 
size standard applied to the IR/IU program would make this an effective 
program for reducing waste. The EA/RIR/IRFA itself bases its cost/
benefit calculations on a set of minimum marketable sizes. Amendment 
49, as proposed, should not be approved by NMFS, but should, instead, 
be returned to the Council for serious consideration of a viable 
alternative to mitigate the impact on the small H&G catcher/processors. 
The fact that, in effect, only one alternative was considered for 
improved retention is a serious defect in the analysis, and the fact 
that improved retention was considered a different option than improved 
utilization are disturbing attempts at arguing that three options were 
considered rather than one option and the status quo. Because the 
option of using traditional size restrictions is available, this 
alternative should be considered as viable for the purposes of analysis 
even if the Council did not intend to select that alternative.
    Response: A wide variety of alternatives was considered during 
development of the IR/IU program. These alternatives were analyzed in a 
series of Council documents beginning with an Implementation Issues 
Analysis dated September 11, 1995. These documents were incorporated by 
reference into the final EA/RIR/FRFA. The Council considered and 
rejected minimum size limits for retention of IR/IU species because an 
exemption allowing the discard of undersize fish would have diluted the 
incentives for vessel operators to avoid the bycatch of juvenile fish 
in the first place. See also response to comment 12.
    The RFA as supplemented contains the required discussion of 
alternative that will have less impact on small entities and the 
reasons such alternatives were rejected.
    Comment 8: Much of the ``full utilization'' achieved by shore-based 
plants results from the production of fishmeal. The Environmental 
Protection Agency (EPA) has stated that shoreside pollock fishmeal 
processors lead the industry in terms of pollutant discharges. In 
contrast, the EPA found that discharges of seafood wastes to deeper 
unimpounded offshore waters by mobile at-sea processors do not create 
the same kinds of problematic waste piles as do shore-based processors 
(U.S. EPA, Response to Comments, Seafood Processors in Alaska, NPDES 
General Permit No. AK-G52-0000 (1995)). An IR/IU program that allows 
meal to meet the increased utilization standard creates a pollution 
concern. Any IR/IU program should be designed to avoid or minimize 
rather than increase the impact of processing wastes on the ocean 
ecosystem.
    Response: The potential environmental degradation resulting from 
shore-based groundfish processing varies on a case-by-case basis 
depending on the form of the discharged material and the location of 
the discharge. For this reason, the EPA no longer regulates shore-based 
surimi and fishmeal processors in the BSAI under the general permit 
cited in the comment. In general, fishmeal processing transforms the 
waste stream from solid to liquid form, which may have greater or 
lesser impacts on the environment depending on the location of the 
discharge. In many instances, liquid waste from fishmeal processing may 
have less impact on the environment than solid waste because it 
disperses more rapidly. As a result, the EPA now regulates each shore-
based surimi and fishmeal processor under a separate NPDES permit which 
establishes limits on both solid and liquid waste discharges. Shore-
based processors must continue to operate under the terms of their 
NPDES permits once the IR/IU program becomes effective.
    Comment 9: If fishermen are required to retain and market juvenile, 
diseased, or damaged fish, the reputation of Alaska seafood products on 
the world market will be damaged.
    Response: The final rule does not place restrictions on types of 
products a vessel may produce from IR/IU species, nor does it restrict 
the industry to production of products for human consumption. Small, 
damaged, or diseased fish may be processed into fishmeal, fish oil, 
minced fish, or other products not intended for human consumption. 
Operations with the capacity to produce fishmeal will have little 
difficulty processing fish that may not be fit for human consumption. 
Operations without the capacity to produce fishmeal may find it more 
difficult to handle such fish. However, NMFS does not expect processors 
to deliberately undermine the marketability of their food grade 
products by including fish that may be unsuitable for that purpose. 
NMFS expects that most operators will comply with the IR/IU program by 
developing a range of products and use below food grade fish to produce 
products not intended for human consumption.
    Comment 10: Amendment 49 should allow for the live release of 
bycatch, as encouraged by the Magnuson-Stevens Act. Vessel operators 
using longline, pot, and jig gear have the ability to carefully release 
bycatch. While pollock and Pacific cod have closed swim bladders and 
may not survive release, flatfish have open swim bladders and will 
survive.
    Response: Longline, pot, and jig vessels do not encounter bycatch 
of rock sole and yellowfin sole in quantities sufficient to warrant a 
special exemption for those gear types. NMFS catch statistics indicate 
that longline, pot, and jig vessels operating in the BSAI encounter 
only negligible amounts of rock sole and yellowfin sole. Longline 
bycatch of these species averages 0.0 percent for rock sole and 0.2 
percent for yellowfin sole as a percentage of total catch. Bycatch of 
these species by pot and jig vessels is virtually unreported. 
Consequently, a full retention requirement for rock sole and yellowfin 
sole is expected to have a negligible effect on vessels using longline, 
pot, and jig gear.
    Comment 11: The final rule should contain exemptions for diseased, 
contaminated, parasite-ridden, or damaged fish. Contaminated, diseased, 
parasite-ridden, or damaged fish are inevitably encountered in the 
course of fishing and processing activities. Retention of such fish is 
in conflict with Food and Drug Administration (FDA) Hazard Analysis 
Critical Control Point (HACCP) requirements. In fact, the HACCP plans 
drafted by many companies actually require the discard of fillet 
products with large amounts of parasites in them.
    Response: NMFS recognizes that some fish may enter a processing 
facility that may be below food grade (see response to comment 9). 
However, the final rule does not limit the type of products a processor 
may produce from its retained catch, nor does it establish a minimum 
recovery rate for each fish. The 15-percent minimum utilization rate 
requirement in the final rule applies to a vessel's aggregate 
production from each IR/IU species during a fishing trip, rather than 
each individual fish. Many processors in the BSAI currently utilize 
damaged and parasite ridden fish in a variety of products such as 
fishmeal, fish oil, minced fish, and bait that are not intended for 
human consumption.
    Federal HACCP regulations require processors to address food safety 
hazards in their HACCP plans. However, nothing in the HACCP regulations 
requires processors to discard fish that are below food grade. Such 
fish may be utilized in a variety of non-food products. Seafood 
processors that currently rely on discarding of whole fish to comply 
with

[[Page 63884]]

HACCP requirements will need to modify their HACCP plans to comply with 
the provisions of the IR/IU program.
    The Council and NMFS considered and rejected various exemptions for 
damaged and parasite-ridden fish for a variety of reasons. An exemption 
allowing discards of fish that are damaged in the course of handling 
and processing could undermine the effectiveness of the IR/IU program 
and render it unenforceable. NMFS believes that such an exemption would 
provide an incentive for processors to deliberately damage quantities 
of IR/IU species that they would prefer not to retain and process for 
economic reasons.
    NMFS does not have statistics on the percentage of fish that are 
rendered unsuitable for food products as a result of parasites. Various 
parasites are commonly encountered in BSAI groundfish catches, and 
processors have developed various techniques for parasite removal 
during processing. An exemption that would allow discarding of fish 
with parasites could undermine the effectiveness of the IR/IU program 
and allow wholesale discards of marketable fish because some form of 
parasite is likely to be encountered in most pollock and Pacific cod.
    The Council and NMFS recognize that retention of damaged fish may 
pose a problem for certain sectors of the industry. Processors with the 
capacity to produce fishmeal are unlikely to be affected because 
damaged and parasite-ridden fish are suitable for fishmeal processing. 
Processors without fishmeal plants may find it more difficult to 
produce marketable products from damaged fish. To address these 
concerns, the Council voted to establish an IR/IU implementation 
committee composed of representatives from industry, conservation 
groups, and management agencies. This IR/IU implementation committee 
will be charged with examining problems that surface during 
implementation of the IR/IU program and providing the Council and NMFS 
with recommendations for changes and modifications to the program that 
may prove necessary. NMFS intends to work closely with the Council and 
industry during implementation of Amendment 49 to further refine 
aspects of the program as problems become apparent during 
implementation.
    Comment 12: The proposed IR/IU program should contain exemptions 
for undersize fish. Most fish processing equipment is limited to 
processing fish within certain size ranges. For technological reasons, 
some processors may be unable to process fish that fall outside these 
size parameters. A minimum size standard would increase the net 
economic benefits to the nation as a result of the IR/IU program by not 
imposing costs on industry to process unmarketable undersize fish.
    Response: Processors with fishmeal plants will have no difficulty 
processing undersize or juvenile fish. However, NMFS recognizes that 
processors without fishmeal plants may be forced to process undersize 
fish into products of little or no value, such as whole frozen fish. 
During early development of the IR/IU program, the Council considered 
and rejected exemptions for juvenile fish because an exemption allowing 
the discard of undersize fish would not have provided vessel operators 
an incentive to avoid the bycatch of juvenile fish in the first place. 
The intent of the IR/IU program is to provide industry with incentives 
to develop more selective fishing techniques, and that objective is 
also underscored in the Magnuson-Stevens Act. To that end, NMFS is 
currently sponsoring research into more selective fishing gear such as 
larger mesh codends and trawl escape panels, and believes that fishing 
selectivity will improve as vessel operators endeavor to avoid bycatch 
of juvenile fish. To the extent that vessel operators are able to avoid 
the capture of juvenile fish in the first place, the impacts of the 
full retention requirement will be reduced.
    Comment 13: The IR/IU program should not require the retention and 
utilization of previously-caught fish which may be brought on board a 
vessel through fishing or retrieval of lost gear. For example, last 
year a vessel retrieved a codend that had been lost in a pollock 
fishery 4 months earlier. The codend was still full of pollock 
(approximately 80 mt). The fish had begun to putrefy and the gas caused 
the codend to float to the surface. The vessel that retrieved the 
codend had to bring the fish on board to dump the codend. According to 
the proposed rule, that vessel would have been required to retain all 
pollock brought on board the vessel without distinction as to their 
condition or the circumstances involved. During the yellowfin sole 
fishery, dead yellowfin sole commonly are caught that had been 
previously discarded by other vessels. Under the IR/IU program, discard 
of IR/IU species may be required for a vessel to comply with directed 
fishing closures. Vessels should not be required to retain and utilize 
dead and putrefying fish that were previously caught and discarded by 
other vessels.
    Response: NMFS agrees. The final rule has been modified to allow 
for the discard of previously caught fish. Vessel operators should not 
log previously caught fish as part of their round-weight catch of an 
IR/IU species. NMFS daily fishing logbooks and daily cumulative 
production logbooks already provide discard code 97 for previously 
discarded (decomposed) fish taken with trawl gear in current fishing 
efforts. This code also should be used when logging discards of 
previously caught IR/IU species.
    Comment 14: Since the purpose of the IR/IU program is to reduce 
waste in the groundfish fishery, NMFS should review the advisability of 
maintaining the current restrictions on the amount of pollock roe a 
vessel is allowed to have on board at any point in time. Those 
restrictions were adopted as an indirect method of prohibiting the 
practice of roe-stripping. Although well intended, and supported by 
industry at the time they were initially imposed, the current 
regulations have actually resulted in the discarding of roe during time 
periods of peak roe recovery. Such a result is incongruous in light of 
current efforts to reduce waste in the fishery--especially in view of 
the discarding restrictions incorporated in Amendment 49. NMFS should 
reconsider the need for the roe retention limits once IR/IU regulations 
go into effect and, if possible, increase the amount of retainable roe 
so as to avoid situations where vessels are required to discard the 
most valuable of all products produced by the pollock fishery.
    Response: NMFS agrees. The current regulations governing retention 
of pollock roe were adopted by NMFS in 1990 to implement Amendment 13/
19 to the groundfish fishery management plans for the BSAI and GOA. 
Amendment 13 to the BSAI FMP states:

    Roe-stripping is prohibited, and the Regional Director is 
authorized to issue regulations to limit this practice to the 
maximum extent practicable. It is the Council's policy that the 
pollock harvest shall be utilized to the maximum extent possible for 
human consumption.

    Among the options considered by the Council during analysis of 
Amendments 13/19 was an option that would have required full 
utilization of pollock, a more restrictive option than the prohibition 
on roe stripping that was adopted by the Council at that time. The IR/
IU program established by Amendment 49 in effect implements the more 
restrictive roe-stripping prohibition originally rejected by the 
Council for Amendment 13. Consequently, previously adopted regulations 
that limit roe-stripping through maximum retainable percentages may be 
redundant and unnecessary. For that reason, NMFS

[[Page 63885]]

intends to work with the Council and the Council's IR/IU implementation 
committee to determine if existing limits on roe retention continue to 
serve a purpose after implementation of the IR/IU program.
    Comment 15: The IR/IU program should contain a provision to allow 
trawlers to bleed codends when necessary for vessel safety. On occasion 
a vessel may accidentally harvest more fish than can be safely brought 
on board. Vessel operators should not be faced with either bringing the 
fish on board and risking the safety of the entire crew and vessel, or 
violating IR/IU regulations by discarding the portion of the catch that 
cannot be brought on board safely.
    Response: The Council's IR/IU industry committee considered and 
rejected proposals to allow codend bleeding. The IR/IU committee 
believed that this practice should stop, and that a prohibition on 
bleeding codends would provide an incentive for fishermen to fish in a 
more cautious manner when their holds are near capacity. In addition, 
many catcher vessels have the capacity to carry excess catch on deck 
safely, although fish retained in such a manner (without refrigeration) 
may not be desired by the processor to which they are delivering. NMFS 
Enforcement and the U.S. Coast Guard generally are not in a position to 
evaluate whether a particular instance of discarding was motivated by 
legitimate safety concerns or by economic reasons. Nevertheless, should 
a vessel operator believe it necessary for the safety of the vessel to 
bleed a codend, the amount of discards should be entered into the 
vessel's daily fishing log along with a description of the extenuating 
circumstances. NMFS will review such instances on a case-by-case basis 
with consideration given to the extent of the violation and possible 
mitigating circumstances.
    Comment 16: The IR/IU program should provide a buffer between 
maximum retainable bycatch (MRB) percentages under the directed fishing 
standards and the IR/IU minimum retention requirements. Under the 
proposed rule, the combination of these two standards results in a 
single point (20 percent for pollock and Pacific cod and 35 percent for 
rock sole and yellowfin sole) that a vessel operator must achieve to 
comply with both standards simultaneously. Without onboard scales, no 
catcher vessel can retain precisely 20 percent of an IR/IU species. 
This is true for both vessels that partially sort their catch on board 
and for those that pump fish directly into refrigerated seawater. This 
situation is an untenable position for a catcher vessel and differs 
greatly from the situation for a catcher/processor, which may meet both 
standards by monitoring the number of cases of product on board and 
maintaining appropriate ratios. If MRB requirements take precedence 
over IR/IU requirements then the proposed rule should lower the 
retention standard when an IR/IU species is closed to directed fishing 
to provide a range of 15 to 20 percent for pollock and Pacific cod and 
25 to 35 percent for rock sole and yellowfin sole within which catcher 
vessels could retain or discard IR/IU species at their option.
    Response: The Council, through its IR/IU industry committee, 
considered and rejected a proposal to provide a buffer between IR/IU 
retention requirements and MRB amounts. The IR/IU industry committee 
recommended, instead, that this issue be reexamined once the program is 
underway and that possible solutions could be developed at that time if 
necessary.
    When an IR/IU species is closed to directed fishing, the IR/IU 
program does not require a vessel operator to retain exactly the MRB 
amount for that species. Rather, the program simply requires the 
retention of all catch of that species up to the MRB amount in effect 
for that species. A vessel operator who maintains a bycatch rate below 
the MRB percentage in effect for an IR/IU species will avoid the 
difficult scenario described in the comment. The avoidance of bycatch 
is an underlying objective of the Magnuson-Stevens Act and one 
objective of the IR/IU program is to encourage vessel operators to 
simply avoid the harvest of IR/IU species when those species are closed 
to directed fishing. To that end, NMFS is actively promoting the 
development of more selective gear technologies and is assisting 
industry efforts to identify and avoid areas with high bycatch rates. 
NMFS believes that attempts should first be made to avoid excessive 
bycatch of IR/IU species closed to directed fishing before retention 
standards are relaxed to accommodate discards of such bycatch.
    Comment 17: The 15-percent minimum utilization rate standard in the 
proposed rule depends on accurate estimates of a vessel's total catch. 
We are concerned that measurement error by observers in the calculation 
of total catch of each IR/IU species may make a vessel accountable for 
processing more fish than it actually caught. Due to the vagaries of 
species composition sampling, an observer's estimate of total catch of 
an IR/IU species during a specific haul may differ from the vessel's 
actual catch by a significant percentage. Based on our experience with 
the accuracy of species composition sampling, this ``phantom fish'' 
problem could occur to a significant degree.
    Response: NMFS recognizes the problems associated with calculating 
the total catch of each IR/IU species on a haul-by-haul basis. However, 
the IR/IU program does not depend on observer estimates of total catch 
of each IR/IU species for monitoring and enforcement of the 15-percent 
minimum utilization rate. Instead, each processor is required to log 
its total catch weight of each IR/IU species on a haul-by-haul basis. 
NMFS logbooks will be revised to accommodate collection of this data. 
When verifying compliance with the 15-percent minimum utilization rate, 
a catcher/processor's logged round-weight catch of an IR/IU species 
will be compared against the weight of products produced from that IR/
IU species.
    At this point, NMFS has not established specific guidelines or 
procedures for measurement of the round-weight catch of IR/IU species 
on board vessels. Vessel operators are free to measure their round-
weight catch of each IR/IU species in the manner they determine to be 
most appropriate to their circumstances. When observers are present, 
vessel operators are free to use the observer's estimate of total 
catch, or they may independently measure the round-weight catch of each 
IR/IU species.
    NMFS chose not to base monitoring and enforcement of the 15-percent 
utilization standard on observer estimates of round-weight catch 
because not all vessels have 100-percent observer coverage, and 
observers, when present, may not sample every haul. If observer 
estimates were used to monitor compliance with the IR/IU program, then 
vessels without observer coverage would, in effect, be exempt from the 
program. Nevertheless, NMFS may use observer data as well as any 
additional information that may be available to verify the accuracy of 
a vessel's logged round-weight catch of IR/IU species. The deliberate 
under-logging of round-weight catch to evade minimum utilization 
requirements is a violation of NMFS recordkeeping and reporting 
requirements and would be subject to enforcement action.
    Comment 18: As indicated in the EA/RIR/IRFA, implementation of the 
IR/IU program requires parallel State of Alaska (State) regulations for 
onshore processors. In the absence of parallel State regulations, 
catcher vessels will be placed in an untenable position if onshore 
processors refuse to accept their

[[Page 63886]]

catch and Federal regulations prohibit them from discarding at sea. 
Therefore, implementation of the IR/IU program should be delayed until 
State IR/IU regulations are in place.
    Response: The State is currently developing a parallel IR/IU 
program that would establish retention and utilization requirements for 
onshore processors, and require onshore processors to accept deliveries 
of IR/IU species. The Alaska Department of Fish and Game (ADF&G) has 
indicated that under existing State statutes that prohibit roe 
stripping and waste of pollock, the State has authority to implement 
IR/IU regulations to govern onshore processing of pollock. ADF&G has 
indicated that the State is proceeding with implementation of IR/IU 
regulations to govern onshore processing of pollock that would be 
effective January 3, 1998. However, ADF&G has indicated that parallel 
IR/IU regulations to govern onshore processing of Pacific cod may not 
be in place until mid-1998 because a statutory change is necessary 
before the State can regulate onshore processing of Pacific cod.
    At the September 1997 Council meeting, NMFS met with 
representatives for catcher vessel operators and concluded that 
parallel State regulations for pollock will address the concerns of the 
catcher vessel fleet on an interim basis provided the State also 
proceeds with parallel State regulations for Pacific cod. Catcher 
vessel operators are most concerned about being able to deliver pollock 
bycatch to processors that have not traditionally processed pollock in 
the past. Catcher vessel operators indicate that they are much less 
concerned about finding onshore markets for Pacific cod.
    Comment 19: The EA/RIR/IRFA clearly concludes that adoption of 
parallel IR/IU regulations by the State is critical to the success of 
the program. The State, acting through the Commissioner of Fish and 
Game, recently argued in Alaska Superior Court that regulations 
allowing the roe stripping of salmon and discard of 100 percent of the 
salmon carcasses were legal under the Alaska anti-waste statute 
(Callaghan v. Alaska, No. 3AN-96-8963 Civ., Slip Op. (3d Super. Ct. 
Alaska July 14, 1997)). In Callaghan, the State Attorney General 
justified the discard of salmon citing the Commissioner of Fish and 
Game's finding that harvesters ``might not harvest these salmon because 
of lack of markets.'' In finding for the State, the Court relied in 
part on a finding by the Commissioner of Fish and Game that ``catching 
and processing the entire fish would result in a financial loss'' (Id. 
at 8). In short, the State prevailed arguing that (1) it is not waste 
to discard unmarketable fish, and (2) ADF&G and the State Attorney 
General are justified in not enforcing the State of Alaska anti-waste 
laws. We believe, therefore, that NMFS cannot reasonably conclude that 
the State of Alaska will implement or enforce parallel IR/IU 
regulations for onshore processors. Without implementation and 
enforcement of parallel State regulations, the IR/IU program should be 
disapproved.
    Response: See response to comment 18. Throughout Council 
development of the IR/IU program, the State has expressed its intent to 
promulgate parallel IR/IU regulations for onshore processors. The State 
was a principal proponent of the IR/IU program throughout the Council 
process, and NMFS has no reason to believe that the State will fail to 
follow through with its commitment to implement parallel IR/IU 
regulations for onshore processors.
    Comment 20: NMFS' ability to determine if the proposed IR/IU 
program satisfies the law and meets the intent of the Council depends 
on its ability to monitor and measure the extent to which vessels avoid 
bycatch. However, the proposed program includes no such monitoring 
mechanism. In fact, throughout the proposed amendment, and also the 
proposed rule, limitations and difficulties associated with monitoring, 
enforcement, and compliance with the program are prominent. There is no 
explicit discussion of a monitoring system geared to assess the 
efficacy of the program. Further, at the June 1997 Council meeting, 
representatives of NMFS recognized that the program does not include 
suitable methods by which to measure its success in meeting stated 
intent or satisfying legal requirements.
    This lack of a monitoring program is directly counter to the draft 
regulations NMFS will soon propose to help Councils implement bycatch 
reduction requirements. The proposed revisions to the guidelines for 
Magnuson-Stevens Act national standards include the following section 
for bycatch reduction requirements:

    Implementation and monitor selected [bycatch reduction] 
management measures. Effects of implemented measures should be 
evaluated routinely. Monitoring systems should be established prior 
to fishing under the selected management measures. Where applicable, 
implementation plans should be developed and coordinated with 
industry and other concerned organizations to identify opportunities 
for cooperative data collection, coordinating data management for 
cost efficiency and avoidance of duplicate effort.

    Response: Monitoring and evaluation of the IR/IU program will be 
accomplished primarily through the use of existing sources of data on 
the catch, retention, and utilization of IR/IU species in the BSAI. The 
groundfish fisheries of the BSAI are among the most extensively 
monitored fisheries in the United States and are subject to the most 
extensive observer coverage requirements of any fishery in the United 
States. NMFS's groundfish monitoring program gathers data from a 
variety of sources including observer reports, industry-submitted 
weekly production reports, NMFS daily fishing logbooks, and ADF&G fish 
tickets. These data sources will enable NMFS to assess the 
effectiveness of the IR/IU program on a fleet-wide basis. Where 
necessary, existing data collection programs are being adjusted to 
accommodate the collection of data necessary for monitoring the IR/IU 
program. For example, NMFS catcher vessel daily fishing logbook, 
catcher/processor daily fishing logbook and mothership cumulative 
production logbooks are being revised to accommodate the collection of 
round-weight catch data for IR/IU species on a haul-by-haul basis.

Changes From the Proposed Rule

    Four changes were made from the proposed rule in response to 
comments:
    1. A provision was added at Sec. 679.27(h) to allow for the discard 
of previously caught fish.
    2. The prohibition on discard of products from IR/IU species at 
Sec. 679.27(e) was revised to allow the discard of products when 
necessary to comply with a directed fishing closure.
    3. The definition of ``fishing trip'' at Sec. 679.2 was revised to 
specify that it applies to the IR/IU program as well as to directed 
fishing closures.
    4. The proposed rule contained separate utilization requirements 
based on a fishing trip for catcher/processors and a reporting week for 
motherships. In the final rule, these were combined into a single 
utilization standard based on a fishing trip for both catcher/
processors and motherships.

Summary of the Final Rule and Guide to Compliance

    The following section in question-and-answer format describes and 
summarizes the requirements of the final rule and is intended to serve 
as a compliance guide for vessel owners and operators.

[[Page 63887]]

Who Must Comply With IR/IU Regulations?

    If you own or operate a vessel fishing for groundfish in the BSAI 
or processing groundfish harvested in the BSAI, you must comply with 
the IR/IU regulations regardless of your vessel's size, gear type, or 
target fishery. Because the Magnuson-Stevens Act does not authorize 
NMFS to regulate onshore processing of fish, these requirements do not 
apply to onshore processors. Parallel regulations to extend IR/IU 
requirements to onshore processors will be issued by the State of 
Alaska.

Which Species Must Be Retained?

    The IR/IU program defines four groundfish species as IR/IU species: 
pollock, Pacific cod, rock sole, and yellowfin sole. Retention and 
utilization requirements apply to pollock and Pacific cod beginning 
January 3, 1998. The requirements will apply to rock sole and yellowfin 
sole beginning January 1, 2003. The purpose of the 5-year delay for 
rock sole and yellowfin sole is to provide industry with sufficient 
time to develop more selective fishing techniques and/or markets for 
these fish.

What Are the Retention Requirements for Catcher Vessels When 
Directed Fishing Is Open?

    The retention requirements for all vessels are set out in table 
format at Sec. 679.27(c)(2). If you own or operate a catcher vessel, 
and directed fishing for an IR/IU species is open, you must retain all 
fish of that species brought on board your vessel until the fish are 
lawfully transferred or sold to an authorized party such as a processor 
operating with a Federal processor permit. This requirement applies to 
all IR/IU species you have caught as well as all IR/IU species you have 
received via transfer from another vessel.

What Are the Retention Requirements for Catcher Vessels When 
Directed Fishing Is Closed?

    If you own or operate a catcher vessel and an IR/IU species is 
closed to directed fishing, you must retain all fish of that species up 
to the MRB amount in effect for that species. If your catch of an IR/IU 
species exceeds the MRB amount in effect for that species, your catch 
in excess of the MRB amount must be discarded. Because the MRB amount 
for a vessel is a running total based on the retained catch of species 
open to directed fishing, you may find it necessary to discard excess 
bycatch of an IR/IU species during the early part of a fishing trip and 
may not subsequently encounter any additional bycatch of that IR/IU 
species during the fishing trip. In such an instance, you would be in 
compliance with the IR/IU program even though the percentage of that 
IR/IU species in your delivery may be below the MRB and you discarded 
catch of that species earlier in the fishing trip.
    The simplest way to simultaneously comply with directed fishing 
closures and the IR/IU retention requirements is to avoid excessive 
bycatch of IR/IU species that are closed to directed fishing. If you 
catch less than the MRB percentage for an IR/IU species, you simply 
retain your entire catch of that species and avoid the difficulty 
associated with calculating how much fish to discard. While NMFS 
encourages vessel operators to avoid bycatch of IR/IU species that are 
closed to directed fishing, at times avoidance may be difficult. Vessel 
operators who frequently exceed the MRB amount in effect for an IR/IU 
species are encouraged to develop appropriate catch measurement 
techniques, such as measured fish-hold volumes or on-board scales. At 
this point, NMFS has not established standards for measurement of catch 
on catcher vessels and intends to seek input from industry on 
appropriate and cost-effective measurement techniques.

What Are the Retention Requirements for Catcher/Processors When 
Directed Fishing Is Open?

    If you own or operate a catcher/processor and directed fishing for 
an IR/IU species is open, you must retain a primary product from all 
fish of that species brought on board your vessel until such products 
are lawfully transferred to an authorized party. This includes all fish 
you have caught as well as all fish you have received via transfer from 
another vessel. You may use any primary product, except roe, to meet 
this minimum retention requirement. The IR/IU program does not limit or 
define the types of primary products that must be produced from each 
IR/IU species, provided that all primary and ancillary products are 
logged in your daily cumulative production logbook (DCPL). In addition, 
whole fish may be considered a product for the purpose of this program 
provided that they are logged as whole fish in your DCPL.

What Are the Retention Requirements for Catcher/Processors When 
Directed Fishing Is Closed?

    If you own or operate a catcher/processor and an IR/IU species is 
closed to directed fishing, you must retain a primary product from all 
fish of that species brought on board your vessel up to the point that 
the round-weight equivalent of primary products from that species 
equals the MRB amount for that species. The simplest way to meet this 
requirement is to avoid bycatch of an IR/IU species that is closed to 
directed fishing so that your production from that species does not 
approach the MRB percentage in effect for that species.
    To monitor your vessel's compliance, you must track, on a running 
basis, both the round-weight equivalent of primary products from your 
basis species, i.e., those species open to directed fishing, and the 
round-weight equivalent of your primary products from the IR/IU species 
closed to directed fishing. As long as the round-weight equivalent of 
your primary products from the IR/IU species closed to directed fishing 
is at or below the MRB amount in effect for that species, you must 
retain a primary product from all catch of that species. If during the 
course of a fishing trip you find that you have exceeded the MRB amount 
for an IR/IU species, you are permitted to discard product from that 
species, if necessary, to bring your operation into compliance with the 
directed fishing closure. This is the only instance in which you are 
permitted to discard products from IR/IU species.

What Is the Definition of a Fishing Trip?

    The definition of a fishing trip used to monitor compliance with 
the IR/IU program is the same definition of a fishing trip currently 
used to monitor compliance with directed fishing closures. You are 
engaged in a fishing trip from the time you begin or resume harvesting, 
receiving, or processing groundfish in an area until: (1) You offload 
or transfer all fish or fish product from your vessel; (2) you enter or 
leave an area where a different directed fishing prohibition applies; 
or (3) you come to the end of a weekly reporting period, whichever 
comes first. This definition of fishing trip applies to catcher 
vessels, catcher processors, and motherships.

What Are the Retention Requirements for Motherships?

    The retention requirements for motherships and catcher/processors 
are identical. No distinction is made between IR/IU species that you 
have caught and IR/IU species you have received through transfer or 
delivery from another vessel.

Under What Circumstances May IR/IU Species Be Released Before They 
Are Brought on Board?

    The intentional discard of IR/IU species prior to bringing them on 
board

[[Page 63888]]

your vessel, such as bleeding codends or shaking fish off longlines, is 
prohibited. However, NMFS recognizes that some escapement of fish from 
fishing gear does occur in the course of fishing operations. Therefore, 
incidental escapement of IR/IU species, such as fish squeezing through 
mesh or accidently dropping off longlines, will not be considered a 
violation unless the escapement is intentionally caused by action of 
the vessel operator or crew.

What if I Must Bleed a Codend for the Safety of My Vessel?

    The IR/IU program contains no exemption to allow the bleeding of 
codends for safety reasons. NMFS urges vessel operators to fish in a 
cautious manner when their fish holds are near capacity to avoid 
catching more fish than can be retained safely. If you believe that 
circumstances require you to bleed a codend or otherwise discard IR/IU 
species for the safety of your vessel, you must log the amount of 
discard in your daily fishing logbook (DFL) and describe the 
circumstances surrounding the incident. Failure to log such an incident 
is a violation of NMFS recordkeeping and reporting requirements. NMFS 
will review such incidents on a case-by-case basis with consideration 
given to the extent of the violation and possible mitigating 
circumstances.

Must I Retain Bycatch of Decomposed Fish Previously Discarded by 
Other Operations?

    You may discard any bycatch of previously discarded fish. When you 
encounter such fish, they should not be recorded in your logbook as 
part of your round-weight catch of an IR/IU species. Discards of 
previously discarded fish should be logged using discard code 97, which 
is for discards of previously discarded, i.e., decomposed, fish taken 
with trawl gear in current fishing efforts.

May I Discard Any Products Produced From IR/IU Species?

    Discard of retained products from an IR/IU species is prohibited 
unless discarding of product is necessary to comply with a directed 
fishing closure.

May I Discard Fish or Products Transferred From Another Vessel?

    The retention requirements of the IR/IU program apply to all fish 
brought on board your vessel, regardless of whether they were harvested 
by your vessel or transferred from another vessel. You are prohibited 
from discarding any products produced from IR/IU species that were 
transferred to you from another vessel.

May I Use IR/IU Species as Bait?

    IR/IU species may be used as bait provided the bait is physically 
attached to authorized fishing gear when deployed. Dumping IR/IU 
species as loose bait (e.g., chumming) is prohibited.

How Is the 15-Percent Minimum Utilization Rate Calculated When 
Directed Fishing Is Open?

    If directed fishing for an IR/IU species is open, your total weight 
of retained or lawfully transferred products produced from IR/IU 
species harvested or received by your vessel during a fishing trip must 
equal or exceed 15-percent of your round-weight catch of that species 
during the same fishing trip.

How Is the 15-Percent Minimum Utilization Rate Calculated When 
Directed Fishing Is Closed?

    When directed fishing for an IR/IU species is closed, your total 
weight of retained or lawfully transferred products produced from IR/IU 
species harvested or received by your vessel during a fishing trip must 
equal or exceed either 15-percent of the MRB amount in effect for that 
species or 15-percent of the round-weight catch of that species, 
whichever is lower. You are only required to utilize those fish that 
you are required to retain under the retention requirements of the IR/
IU program. For example, if you have minimal bycatch of an IR/IU 
species closed to directed fishing (below the MRB amount), your total 
weight of retained products must equal or exceed 15-percent of your 
round-weight catch of that species. If your bycatch of an IR/IU species 
closed to directed fishing is high enough that you are forced to 
discard a portion of your catch to avoid exceeding the MRB amount, the 
15-percent utilization rate would be applied against the MRB amount and 
not against your total catch of that species prior to discarding. You 
must simultaneously comply with both the retention and utilization 
requirements of the IR/IU program. Compliance with one standard in the 
absence of the other would be a violation.

How Do Utilization Requirements Differ Between Catcher/Processors 
and Motherships?

    The only difference between the utilization requirements for 
catcher/processors and motherships is that the 15-percent minimum 
utilization rate is applied during the course of a fishing trip for 
catcher/processors and during the course of a reporting week for 
motherships. For the purpose of the IR/IU program, NMFS has defined the 
term ``fishing trip'' in the same manner as it is defined for the 
purpose of monitoring directed fishing closures.

How Do I Calculate My Round-Weight Catch of IR/IU Species?

    If you operate a catcher vessel or catcher processor, you must 
record the round-weight catch of all IR/IU species on a haul-by-haul 
basis. If you operate a mothership, you must record the round weight of 
all IR/IU species received on a delivery-by-delivery basis. If you have 
an observer aboard your vessel, you are free to use the observer's 
estimates of round-weight catch of each IR/IU species, but you are not 
required to do so. At this point, NMFS has not established specific 
guidelines or procedures for measurement of the round-weight catch of 
IR/IU species on board vessels. Vessel operators are free to measure 
their round-weight catch of each IR/IU species in the manner they 
determine to be most appropriate to their circumstances. However, NMFS 
may verify the accuracy of a vessel's reported round-weight catch of 
IR/IU species by comparison to observer data and by any other means 
that may be available. Deliberate under-logging of the round-weight 
catch of an IR/IU species is a violation of NMFS recordkeeping and 
reporting requirements and is subject to enforcement action.

What Changes to Recordkeeping and Reporting Requirements Are 
Included in the IR/IU Program?

    This final rule includes changes to existing recordkeeping 
requirements to aid the monitoring and enforcement of the IR/IU 
program. Beginning January 3, 1998, all catcher vessels and catcher/
processors that are currently required to maintain NMFS logbooks are 
required to log the round-weight catch of pollock and Pacific cod in 
the NMFS catcher vessel DFL or catcher/processor DCPL on a haul-by-haul 
or set-by-set basis. Motherships are required to log the receipt round 
weight of pollock and Pacific cod in the mothership DCPL on a delivery-
by-delivery basis. Beginning January 1, 2003, this requirement will 
extend to rock sole and yellowfin sole. These changes are necessary to 
provide vessel operators and enforcement agents with round-weight 
information for each IR/IU species in order to monitor compliance with 
the IR/IU program.

Additional Technical Changes to Existing Regulations

    The definition of ``fishing trip'' at Sec. 679.2 is revised to 
specify that it applies to the IR/IU program as well as to directed 
fishing closures. This change

[[Page 63889]]

is necessary to clarify the meaning of the term ``fishing trip'' as it 
applies to the IR/IU program.
    The definition of ``round weight or round-weight equivalent'' at 
Sec. 679.2 is revised by restricting the definition to ``round-weight 
equivalent''. The term ``round weight'' is already defined by NMFS in 
regulations appearing at 50 CFR part 600 and does not need to be re-
defined in regulations at Sec. 679.2.
    The prohibition on discard of pollock product at 
Sec. 679.20(g)(5)(ii) is revised to allow the discard of product when 
necessary to comply with a directed fishing closure. This change is 
necessary to prevent a conflict with the regulations at Sec. 679.20(i) 
that implement the IR/IU program.
    Regulations at Sec. 679.50 (c) and (d), which specify observer 
coverage requirements for motherships based on ``round weight or round-
weight equivalent'' of groundfish processed, are revised by removing 
the term ``round weight.'' Observer coverage requirements for 
motherships during a calendar month would be based only on the round-
weight equivalent of groundfish processed. This change is necessary 
because the terms ``round weight'' and ``round-weight equivalent'' 
would no longer be synonymous under the final rule.

Classification

    The Administrator, Alaska Region, NMFS, determined that Amendment 
49 is necessary for the conservation and management of the groundfish 
fishery of the BSAI and that it is consistent with the Magnuson-Stevens 
Act and other applicable laws.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act. The collection of this information has 
been approved by the Office of Management and Budget, OMB Control 
Number 0648-0213.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information, subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    Public comment is sought regarding: Whether this collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information has practical utility; 
the accuracy of the burden estimate; ways to enhance the quality, 
utility, and clarity of the information to be collected; and ways to 
minimize the burden of the collection of information, including through 
the use of automated collection techniques or other forms of 
information technology.
    An RIR was prepared for this final rule that describes the 
management background, the purpose and need for action, the management 
action alternatives, and the social impacts of the alternatives. The 
RIR also estimates the total number of small entities affected by this 
action and analyzes the economic impact on those small entities.
    An FRFA has been prepared for this action and consists of the EA/
RIR/FRFA and the preambles to the proposed and final rules implementing 
this action. The analysis examines the economic effects of this final 
rule by fishery and gear type and makes the following conclusions: (1) 
The economic effects of the final rule on vessels using longline, jig, 
and pot gear would not be significant; (2) the economic effects of the 
final rule on trawl catcher vessels and shore-based processors would 
not be significant; and (3) the economic effects of the final rule on 
trawl catcher/processor operations may or may not be significant 
depending upon the fishery as well as the size and processing capacity 
of the vessel in question.
    Under the category of trawl catcher/processors, the economic 
effects on vessels participating in the pollock, sablefish, Greenland 
turbot, rockfish, and Atka mackerel fisheries would not be significant. 
However, the economic effects on vessels participating in the Pacific 
cod, rock sole, yellowfin sole, flathead sole and ``other'' flatfish 
fishery would be significant. The reason is that the bycatch of IR/IU 
species in these fisheries is substantial. The quantity of additional 
retained catch that operators in these fisheries would be required to 
handle under the final rule would impose significant operational costs 
on these fisheries, taken as a whole. This is especially true for 
products for which markets are limited or undeveloped (e.g., small 
Pacific cod, male rock sole, and H&G pollock). Current prices for these 
products may be insufficient to cover the costs of their production.
    In general, the impacts on any individual factory trawler operation 
would vary inversely with the size and configuration of the vessel, 
hold capacity, processing capability, markets and market access, as 
well as the specific composition and share of the total catch of the 
four IR/IU species. The burden would tend to fall most heavily upon the 
smallest, least diversified operations among the current fleet. In 
addition, the groundfish vessel moratorium, proposed license limitation 
program, and U.S. Coast Guard load-line requirements severely limit 
reconstruction to increase vessel size and/or processing capacity. 
These restrictions are expected to further limit the ability of smaller 
catcher/processors to adapt to the proposed IR/IU program.
    NMFS data indicate that in 1995, 44 at-sea processors participated 
in the BSAI Pacific cod trawl fishery (4 motherships and 40 catcher/
processors); 38 at-sea processors participated in the BSAI rock sole 
fishery (2 motherships and 36 catcher/processors); 48 at-sea processors 
participated in the BSAI yellowfin sole fishery (4 motherships and 44 
catcher/processors); 19 catcher/processors participated in the flathead 
sole fishery; and 23 at-sea processors participated in the ``other'' 
flatfish fishery (1 mothership and 22 catcher/processors).
    In selecting its preferred alternative for Amendment 49, the 
Council minimized the economic impact of the IR/IU program on small 
entities in a variety of ways. First, the Council adopted 5-year delay 
in the effective date for rock sole and yellowfin sole to provide 
industry with sufficient time to develop more selective fishing 
techniques and/or markets for fish that are currently being discarded. 
Second, the Council rejected utilization alternatives that would have 
limited product forms or placed limits on fishmeal production, in order 
to allow industry more flexibility in complying with the utilization 
requirements of the IR/IU program. Finally, the Council rejected 
monitoring alternatives that would have imposed substantial costs in 
the form of increased observer coverage requirements or required a full 
time compliance monitor aboard all vessels. For reasons set forth in 
this preamble above, alternatives that would have further minimized 
economic impacts on small entities were rejected.
    This final rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Administrator, Alaska Region, NMFS determined that fishing 
activities conducted under this rule would not affect endangered and 
threatened species listed or critical habitat designated pursuant to 
the Endangered Species Act in any manner not considered in prior 
consultations on the groundfish fisheries of the BSAI.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.


[[Page 63890]]


    Dated: November 26, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    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.

    2. In Sec. 679.2, the definitions of ``IR/IU'' and ``IR/IU 
species'' are added in alphabetical order, paragraph (1) in the 
definition of ``Fishing trip'' is revised and the definition and 
heading of ``Round weight or round-weight equivalent'' are revised to 
read as follows:


Sec. 679.2  Definitions.

* * * * *
    Fishing trip means: (1) With respect to groundfish directed fishing 
closures or the IR/IU program, an operator of a vessel is engaged in a 
fishing trip from the time the harvesting, receiving, or processing of 
groundfish is begun or resumed in an area until:
    (i) The effective date of a notification prohibiting directed 
fishing in the same area under Sec. 679.20 or Sec. 679.21;
    (ii) The offload or transfer of all fish or fish product from that 
vessel;
    (iii) The vessel enters or leaves an area where a different 
directed fishing prohibition applies; or
    (iv) The end of a weekly reporting period, whichever comes first.
* * * * *
    IR/IU means the improved retention/improved utilization program set 
out at Sec. 679.27.
    IR/IU species means any groundfish species that is regulated by a 
retention or utilization requirement set out at Sec. 679.27.
* * * * *
    Round-weight equivalent means the weight of groundfish calculated 
by dividing the weight of the primary product made from that groundfish 
by the PRR for that primary product as listed in Table 3 of this part, 
or, if not listed, the weight of groundfish calculated by dividing the 
weight of a primary product by the standard PRR as determined using the 
best available evidence on a case-by-case basis.
* * * * *
    3. In Sec. 679.5, paragraphs (c)(3)(ii)(G) and (e)(2)(ii)(F) are 
added to read as follows:


Sec. 679.5  Recordkeeping and reporting.

* * * * *
    (c) * * *
    (3) * * *
    (ii) * * *
    (G) The round-weight catch of pollock and Pacific cod.
* * * * *
    (e) * * *
    (2) * * *
    (ii) * * *
    (F) The receipt round weight of pollock and Pacific cod.
* * * * *
    4. In Sec. 679.20, paragraph (g)(5)(ii) is revised to read as 
follows:


Sec. 679.20  General Limitations.

* * * * *
    (g) * * *
    (5) * * *
    (ii) No discard of processed product. Any pollock product that has 
been processed may not be discarded at sea unless such discarding is 
necessary to meet other requirements of this part.
* * * * *
    5. Section 679.27 is added to subpart B to read as follows:


Sec. 679.27  Improved Retention/Improved Utilization Program.

    (a) Applicability. The owner or operator of a vessel that is 
required to obtain a Federal fisheries or processor permit under 
Sec. 679.4 must comply with the IR/IU program set out in this section 
while fishing for groundfish in the BSAI, fishing for groundfish in 
waters of the State of Alaska that are shoreward of the BSAI, or when 
processing groundfish harvested in the BSAI.
    (b) IR/IU species. The following species are defined as ``IR/IU 
species'' for the purposes of this section:
    (1) Pollock.
    (2) Pacific cod.
    (3) Beginning January 1, 2003, rock sole.
    (4) Beginning January 1, 2003, yellowfin sole.
    (c) Minimum retention requirements--(1) Definition of retain on 
board. Notwithstanding the definition at 50 CFR 600.10, for the purpose 
of this section, to retain on board means to be in possession of on 
board a vessel.
    (2) The following table displays minimum retention requirements by 
vessel category and directed fishing status:

----------------------------------------------------------------------------------------------------------------
                                                                                      You must retain on board  
              If you own or operate a                            And                   until lawful transfer    
----------------------------------------------------------------------------------------------------------------
(i) Catcher vessel................................  (A) Directed fishing for an    all fish of that species     
                                                     IR/IU species is open.         brought on board the vessel.
                                                    (B) Directed fishing for an    all fish of that species     
                                                     IR/IU species is prohibited.   brought on board the vessel 
                                                                                    up to the MRB amount for    
                                                                                    that species.               
                                                    (C) Retention of an IR/IU      no fish of that species.     
                                                     species is prohibited.                                     
(ii) Catcher/ processor...........................  (A) Directed fishing for an    a primary product from all   
                                                     IR/IU species is open.         fish of that species brought
                                                                                    on board the vessel.        
                                                    (B) Directed fishing for an    a primary product from all   
                                                     IR/IU species is prohibited.   fish of that species brought
                                                                                    on board the vessel up to   
                                                                                    the point that the round-   
                                                                                    weight equivalent of primary
                                                                                    products on board equals the
                                                                                    MRB amount for that species.
                                                    (C) Retention of an IR/IU      no fish or product of that   
                                                     species is prohibited.         species.                    
(iii) Mothership..................................  (A) Directed fishing for an    a primary product from all   
                                                     IR/IU species is open.         fish of that species brought
                                                                                    on board the vessel.        
                                                    (B) Directed fishing for an    a primary product from all   
                                                     IR/IU species is prohibited.   fish of that species brought
                                                                                    on board the vessel up to   
                                                                                    the point that the round-   
                                                                                    weight equivalent of primary
                                                                                    products on board equals the
                                                                                    MRB amount for that species.
                                                    (C) Retention of an IR/IU      no fish or product of that   
                                                     species is prohibited.         species.                    
----------------------------------------------------------------------------------------------------------------


[[Page 63891]]

    (d) Bleeding codends and shaking longline gear. Any action intended 
to discard or release an IR/IU species prior to being brought on board 
the vessel is prohibited. This includes, but is not limited to bleeding 
codends and shaking or otherwise removing fish from longline gear.
    (e) At-sea discard of product. Any product from an IR/IU species 
may not be discarded at sea, unless such discarding is necessary to 
meet other requirements of this part.
    (f) Discard of fish or product transferred from other vessels. The 
retention requirements of this section apply to all IR/IU species 
brought on board a vessel, whether harvested by that vessel or 
transferred from another vessel. At-sea discard of IR/IU species or 
products that were transferred from another vessel is prohibited.
    (g) IR/IU species as bait. IR/IU species may be used as bait 
provided that the deployed bait is physically secured to authorized 
fishing gear. Dumping of unsecured IR/IU species as bait (chumming) is 
prohibited.
    (h) Previously caught fish. The retention and utilization 
requirements of this section do not apply to incidental catch of dead 
or decomposing fish or fish parts that were previously caught and 
discarded at sea.
    (i) Minimum utilization requirements. If you own or operate a 
catcher/processor or mothership, the minimum utilization requirement 
for an IR/IU species harvested in the BSAI is determined by the 
directed fishing status for that species according to the following 
table:

----------------------------------------------------------------------------------------------------------------
                                                                              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 is open,                           equal or exceed 15 percent of the  
                                                                              round-weight catch or round-weight
                                                                              delivery of that species during   
                                                                              the fishing trip.                 
(2) directed fishing for an IR/IU species is prohibited,                     equal or exceed 15 percent of the  
                                                                              round-weight catch or round-weight
                                                                              delivery of that species during   
                                                                              the fishing trip or 15 percent of 
                                                                              the MRB amount for that species,  
                                                                              whichever is lower.               
(3) retention of an IR/IU species is prohibited,                             equal zero.                        
----------------------------------------------------------------------------------------------------------------

    6. In Sec. 679.50, paragraphs (c)(1)(i), (c)(1)(ii), (c)(3) 
introductory text, (d)(1), and (d)(2) are revised to read as follows:


Sec. 679.50  Groundfish Observer Program applicable through December 
31, 1997.

* * * * *
    (c) *  *  *
    (1) *  *  *
    (i) A mothership of any length that processes 1,000 mt or more in 
round-weight equivalent of groundfish during a calendar month is 
required to have an observer aboard the vessel each day it receives or 
processes groundfish during that month.
    (ii) A mothership of any length that processes from 500 mt to 1,000 
mt in round-weight equivalent of groundfish during a calendar month is 
required to have an observer aboard the vessel at least 30 percent of 
the days it receives or processes groundfish during that month.
* * * * *
    (3) Assignment of vessels to fisheries. At the end of any fishing 
trip, a vessel's retained catch of groundfish species or species groups 
for which a TAC has been specified under Sec. 679.20, in round-weight 
equivalent, will determine to which fishery category listed under 
paragraph (c)(2) of this section the vessel is assigned.
* * * * *
    (d) *  *  *
    (1) Processes 1,000 mt or more in round-weight equivalent of 
groundfish during a calendar month is required to have an observer 
present at the facility each day it receives or processes groundfish 
during that month.
    (2) Processes 500 mt to 1,000 mt in round-weight equivalent of 
groundfish during a calendar month is required to have an observer 
present at the facility at least 30 percent of the days it receives or 
processes groundfish during that month.
* * * * *
[FR Doc. 97-31711 Filed 12-2-97; 8:45 am]
BILLING CODE 3510-22-P