[Federal Register Volume 63, Number 129 (Tuesday, July 7, 1998)]
[Rules and Regulations]
[Pages 36614-36618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17937]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 980501115-8160-02; I.D. 032498A]
RIN 0648-AK86
Fisheries Off West Coast States and in the Western Pacific;
Pacific Coast Groundfish Fishery; Compensation for Collecting Resource
Information
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule.
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SUMMARY: This action, authorized by the Magnuson-Stevens Conservation
and Management Act (Magnuson-Stevens Act), implements provisions by
which a vessel owner or operator who has collected resource information
according to a NMFS-approved protocol may be compensated with the
opportunity to harvest fish in excess of current vessel limits and/or
outside other restrictions. This action is intended to improve the
types and amounts of scientific information available for use in stock
assessments and management of the Pacific coast groundfish fishery.
This action must be implemented under the Magnuson-Stevens Act
emergency rulemaking authority so that NMFS may contract with
commercial fishing vessels to conduct resource surveys during the
summer of 1998. The Pacific Fishery Management Council (Council) is
considering an amendment to the Pacific Coast Groundfish Fishery
Management Plan (PCGFMP) that would continue this compensation
initiative beyond 1998.
DATES: Effective July 1, 1998 through January 4, 1999.
ADDRESSES: Send comments to William Stelle, Jr., Administrator,
Northwest Region, (Regional Administrator) NMFS, 7600 Sand Point Way
NE., Seattle, WA 98115; or William T. Hogarth, Administrator, Southwest
Region, (Regional Administrator) NMFS, 501 West Ocean Blvd., Suite
4200, Long Beach, CA 90802-4213. Copies of the
[[Page 36615]]
environmental assessment/regulatory impact review are also available
from that address. Send comments regarding the burden estimate or any
other aspect of the collection-of-information requirements in this
emergency rule, including suggestions for reducing the burden, to one
of the NMFS addresses and to the Office on Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, DC 20503
(ATTN: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Katherine A. King at 206-526-6140.
SUPPLEMENTARY INFORMATION: NMFS is implementing an emergency rule to
allow owners or operators of vessels that collect resource information
to be compensated with the opportunity to harvest fish in excess of
current vessel limits and/or outside other restrictions [hereinafter
``compensated with fish'']. The Council recommended this action at its
November 1997 meeting in Portland, OR, with the intent that NMFS
proceed with this rule immediately so that NMFS may so contract with
commercial fishing vessels to conduct resource surveys during the
summer of 1998.
A proposed rule was published on May 15, 1998 (at 63 FR 27035),
requesting public comments through June 5, 1998. One comment was
received, which resulted in no change to the final rule, and NMFS made
one clarification regarding accounting for fish used as compensation.
The final rule is substantively the same as proposed. See the preamble
to the proposed rule for additional background information.
Background
On October 11, 1996, the Magnuson-Stevens Act was amended to
authorize the Secretary of Commerce (Secretary) to use the private
sector to provide vessels, equipment, and services necessary to survey
fishery resources and to pay for these surveys through the sale of fish
taken during the survey or, if the quality or amount of fish is not
adequate, on a subsequent commercial fishing trip (sec. 402(e)).
Section 303(b)(11) of the Magnuson-Stevens Act enables the Secretary to
``reserve a portion of the allowable biological catch of the fishery
for use in scientific research.'' A vessel that is chartered by NMFS to
conduct resource surveys becomes a ``scientific research vessel'' as
defined at 50 CFR 600.10, and it must not conduct commercial fishing on
the same trip during which a resource survey is conducted.
These provisions must be in place by early July 1998 in order to
include compensation with fish as a component of contracts NMFS will
award to commercial fishing vessels to conduct resource surveys during
the summer of 1998. Stock assessments for the Dover sole/thornyhead/
trawl-caught sablefish complex are controversial and have resulted in
serious concern over the amount and accuracy of survey data. NMFS is
committed to addressing these concerns. However, Federal fiscal
constraints have precluded gathering the information needed. This is
further compounded by the unavailability of the NOAA ship Miller
Freeman, the principle vessel used for conducting resource surveys in
this fishery, during much of 1998. Implementation of these provisions
would enable NMFS to expand sampling in the annual slope survey that
provides data for the stock assessments for these and other groundfish
species. There is inadequate time to amend the PCGFMP to provide for
using fish as compensation (and subtracting the compensation fish from
acceptable biological catch (ABC)) before the slope survey is scheduled
to begin in August 1998. Therefore, NMFS is implementing this rule
under the Secretary's emergency rulemaking authority of the Magnuson-
Stevens Act so that these provisions may be implemented in time to
support the 1998 slope survey. The Council is preparing an amendment to
the PCGFMP for later implementation.
Compensation for a Vessel Conducting a Resource Survey
The Magnuson-Stevens Act authorizes the Secretary, in consultation
with the Council and the fishing industry, to structure competitive
solicitations by which a vessel's owner or operator may compete for a
contract with NMFS to conduct a resource survey. Resource surveys
generally are conducted from chartered fishing vessels, chartered
university vessels, and dedicated NOAA vessels. In a resource survey,
all samples (fish) are collected according to a specified research plan
or protocol. NMFS distinguishes survey activities by a scientific
research vessel from commercial fishing activities according to a
process of acknowledging scientific research described at 50 CFR
600.745(a). NMFS frequently uses this mechanism to conduct surveys from
chartered fishing vessels, and, in some cases, some of the sample has
been retained by the vessel owner/operator for sale to reduce waste and
to defray some of the costs of the charter. However, any additional
harvest taken on a subsequent commercial trip as payment for the
resource survey would not be considered scientific research. This
additional harvest was not authorized under the old provisions of the
Magnuson-Stevens Act.
The new provisions of the Magnuson-Stevens Act provide the
authority to go beyond allowing the retention and sale of fish caught
during the course of a resource survey by providing compensation
through the opportunity to harvest fish in excess of current vessel
limits and/or outside of other restrictions. This rule authorizes such
``compensation fishing'' through the issuance of an exempted fishing
permit (EFP) in the Pacific Coast groundfish fishery, which would
enable the vessel to exceed trip limits (and/or to be exempt from other
specified management restrictions) so that the compensation amount
could be achieved. The compensation EFP would include terms and
conditions that would limit the authorized activities. Conditions for
disposition of bycatch or any excess catch and for reporting the value
of the amount landed and other appropriate terms and conditions would
be specified in the EFP. If the PCGFMP is amended, it is anticipated
that compensation fishing would occur no later than the end of
September of the year after the survey occurred. Compensation fishing
must take place during the period specified in the EFP and must be
conducted according to the terms and conditions of the EFP. The
compensation EFP may also require the vessel owner or operator to keep
separate records of compensation fishing conducted after the survey is
completed and to submit them to NMFS within a specified period of time
after the compensation fishing is completed.
Process
The process incorporates selection of commercial vessels to be used
to conduct the resource surveys, issuance of compensation EFPs to
provide for compensation with fish, and adjustment of the ABC to
account for the compensation fish used.
Competitive Offers
NMFS may initiate a competitive solicitation, i.e., request for
proposals (RFP), to select vessels to conduct resource surveys that use
fish as full or partial compensation. The RFP would be publicized in
the Commerce Business Daily and would specify the factors that NMFS
would use in evaluating the proposals. Vessel owners would be expected
to submit offers to conduct the resource survey for a combination of
dollars and compensation fish.
[[Page 36616]]
Council Consultation and Approval
At a Council meeting, NMFS would consult with the Council and
receive public comment on upcoming resource surveys to be conducted
with groundfish used as whole or partial compensation. For each
proposal, NMFS would present (1) the maximum number of vessels expected
or needed to conduct the survey, (2) an estimate of the species and
amount of fish likely to be needed to compensate the vessel, (3) the
time frame in which the survey and the compensation fish would be
taken, and (4) the year in which the compensation fish would be
deducted from the ABC before determining the harvest guideline (HG) or
quota. This is, in effect, equivalent to NMFS presenting a compensation
EFP application to the Council for the compensation amounts. In
general, compensation fish should be similar to surveyed species, but
there may be reasons to provide compensation with healthier, more
abundant, less restricted, or more easily targeted species. For
example, NMFS may decline to pay a vessel with species that are, or are
expected to be, overfished, that are subject to overfishing, or that
are unavoidably caught with species that are overfished or subject to
overfishing. NMFS may also want to take into account other factors such
as expected discards and incidental catches of other species. If the
Council does not approve the proposal to use fish as compensation to
pay for a resource survey, NMFS will not use fish, other than fish
taken during the scientific research, as compensation for that survey.
Awarding the Contract
NMFS would negotiate and award the resource survey contracts in
accordance with normal Federal procurement procedures. The contract
would include any conditions and limits on compensation fishing,
including a requirement for the vessel to have on board (1) a letter of
acknowledgment of research signed by the Regional Administrator or
designee, while conducting any resource survey, and (2) the
compensation EFP while conducting compensation fishing and for a period
of at least 15 days after the end of any applicable cumulative trip
limit period in which compensation fishing occurred.
Retention of Samples
All fishing on a resource survey trip would be required to be
conducted according to scientific protocol and would be considered
scientific research. However, the owner or operator of the vessel could
retain and sell some fish caught while conducting the survey as
compensation for the vessel's participation. Retention of samples for
sale would be at the discretion of the chief scientist on board, who
would consult with the vessel captain. Collection of scientific
information and samples would be the highest priority and might
interfere with the vessel's ability to retain market-quality fish.
Issuance of the Compensation EFP
Upon successful completion of the resource survey and of the
determination concerning the amount and/or value of the survey sample
that was retained for sale as payment for conducting the survey, NMFS
would issue a compensation EFP to the owner or operator of the vessel
if full compensation has not been achieved by cash payment and
retention of the survey sample. The compensation EFP would allow the
vessel an opportunity to exceed the current commercial fishing limits
by the total amount of compensation fish needed. The amount of
compensation fish needed is the amount of fish specified in the
contract less the amount and/or value of the survey sample retained for
sale. The compensation EFP also could exempt the vessel from other
specified management measures.
Accounting for Compensation Fish
Because the species and amounts of fish used as compensation would
not be determined until the contract is awarded, it may not be possible
to deduct the amount of compensation fish from the ABC or HG in the
year that the fish are caught. Even if this could be done, it would
cause great confusion with the many allocations and limits that were
set before the compensation amounts were known. Therefore, the
compensation fish will be deducted from the ABC the year after they are
caught. During the annual specification process (50 CFR 660.321(b)),
NMFS would advise the Council of the total amount of fish caught during
the year as compensation for conducting a resource survey, which then
would be deducted from the following year's ABCs before setting the HGs
or quotas. (If compensation fish are taken too late in the year so that
landings data are not available to be deducted from the next year's
ABC, it will be deducted in the next management cycle practicable.)
Compensation for a Commercial Vessel Collecting Resource
Information--an EFP With a Compensation Clause
NMFS also intends to conduct smaller scale cooperative projects on
vessels that are operating in the commercial fishery. This type of
activity would not be considered scientific research under 50 CFR
600.745(a) because it would not be conducted by a scientific research
vessel, even though the vessels would be collecting resource
information according to strict scientific standards approved by NMFS.
For small-scale cooperative projects, NMFS could issue EFPs to fishing
vessels collecting the resource information. The EFP would require the
vessel to conduct specific activities and allow it to retain and sell a
limited amount of fish above the amount it could take under its regular
trip limit. After the resource information has been obtained, the EFP
could authorize the vessel to sell the fish that were in the sample.
This would be a standard EFP, issued under the procedures at 50 CFR
600.745(b). Fish caught under this EFP would be counted against the
ABCs and HGs or quotas in the year they are caught.
In some circumstances, NMFS might want to allow the vessel to
harvest slightly more fish than necessary for the particular project.
For the sablefish depth-specific sampling EFP expected in 1998, a
vessel would be able to retain the sample plus a modest compensation
amount, no larger than the size of the sample, above its normal trip
limits. Samples in these cases generally would be expected to involve
less than 500-1,500 lb (227-680 kg) of fish per vessel per month. The
extra fish would compensate the vessel for the extra work involved in
collecting the samples, encourage vessels to participate in surveys,
and utilize more of the fish taken during the surveys that are surplus
to sampling needs. NMFS could propose the amount of fish that would be
used as compensation, or the EFP applicant could propose an amount in
the EFP application. In these cases, when NMFS announces receipt of the
EFP application and requests comments as required under 50 CFR
600.745(b), NMFS also announces a window period during which vessels
would have an opportunity to submit EFP applications. NMFS contemplates
two ways of issuing such EFPs: First, the EFPs could be issued to
individuals implementing a protocol approved by NMFS. NMFS would
consider the qualified applicants, issue EFPs to all of them, select
participation by lottery, issue EFPs to the first applicants, or use
other impartial selection methods. Second, NMFS could issue the EFP to
a NMFS element or to a state or other Federal research agency, and the
research agency's proposal would include an impartial way of selecting
fishing vessel
[[Page 36617]]
participants that would receive individual EFPs under the umbrella EFP
held by the research agency.
Biological and Socio-economic Impacts
The biological impacts of using fish as compensation are expected
to be neutral in the short term and positive in the long term. In the
short term, the amount of fish used as compensation will be within the
ABC, and ,therefore, within current acceptable biological levels. In
the long term, the additional information that is gathered because NMFS
is able to compensate vessels with fish will provide more and better
data for use in stock assessments, resulting in better management of
the stock and less likelihood of overfishing. This should lead to
better stock assessments and to a better long-term prognosis for a
sustainable fishery, contributing to stability in the fishing industry
and in the resources upon which the industry depends. A more detailed
discussion is found in the preamble to the proposed rule and the
environmental assessment for this action.
Comment and Response
One comment was received during the public comment period. It was
supportive of the rule but requested a broader distribution of the RFP
soliciting charter vessels to conduct resource surveys. NMFS agrees
that a wide distribution is a good idea and will attempt to do so. In
fact, notification of the RFP for the 1998 slope survey was submitted
to each holder of a limited entry trawl permit for the groundfish
fishery off Washington, Oregon, and California. However, distribution
of the RFP is part of the Federal procurement process and is not
governed by this rule; a description was included in the preamble of
the proposed rule as background information. Therefore, no change is
made to this rule.
Clarification
NMFS has changed the rule slightly to clarify that compensation
fish caught too late in 1998 to be counted against the 1999 ABC may be
deducted in the next management cycle practicable, e.g., 2000. Other
minor editorial changes have been made for clarity and to meet
publication format requirements.
Classification
The Assistant Administrator (AA) finds that the need to implement
these measures in a timely manner so that vessels collecting resource
information may be compensated with fish constitutes good cause under
authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in
effective date. If the rule was not made effective for 30 days, NMFS
would be unable to issue fish compensation contracts in a timely manner
to vessels needed to conduct the August 1998 slope survey. This would
be contrary to the public interest because sufficient funds are not
available to compensate all of the vessels needed to conduct an
adequate survey. The result would be a reduced survey with less data to
determine the status of the resource. Also, it is unnecessary to delay
the rule because the survey does not directly affect the activities of
the 1998 fishery and there are no compliance requirements for
participants in the survey.
This emergency rule has been determined to be not significant for
purposes of Executive Order 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
No comments were received regarding this certification. As a result, a
regulatory flexibility analysis was not prepared.
This emergency rule contains a collection-of-information
requirement subject to the Paperwork Reduction Act (PRA).
Notwithstanding any other provision of 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. The collection of this information has been
approved by the Office of Management and Budget, under OMB control
number 0648-0203 for Federal fishing permits. The public reporting
burden for applications for exempted fishery permits is estimated at 1
hour per response; burden for reporting by exempted fishing permittees
is estimated at 30 minutes per response. These estimates include the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and revising
the collection of information. Send comments regarding these burden
estimates or any other aspect of the data requirements, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503 (ATTN: NOAA Desk Officer).
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,
Reporting and recordkeeping requirements.
Dated: June 30, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended
as follows:
PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN
PACIFIC
l. The authority citation for part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 660.306, paragraph (y) is added to read as follows:
Sec. 660.306 Prohibitions.
* * * * *
(y) Fish for groundfish in violation of any terms or conditions
attached to an EFP under Sec. 660.350.
3. In part 660, subpart G, a new Sec. 660.350 is added to read as
follows:
Sec. 660.350 Compensation with fish for collecting resource
information--exempted fishing permits off Washington, Oregon, and
California.
In addition to the reasons stated in Sec. 600.745(b)(1) of this
chapter, an EFP may be issued under this subpart G for the purpose of
compensating the owner or operator of a vessel for collecting resource
information according to a protocol approved by NMFS. The EFP would
allow a vessel to retain fish as compensation in excess of trip limits,
or to be exempt from other specified management measures for the
Pacific coast groundfish fishery.
(a) Compensation EFP. A compensation EFP may be issued to the owner
or operator of a vessel that conducted a resource survey according to a
contract with NMFS. A vessel's total compensation from all sources (in
terms of dollars or amount of fish and including fish from survey
samples or compensation fish) will be determined through normal Federal
procurement procedures. The compensation EFP will specify the maximum
amount or value of fish that may be retained by the vessel after the
resource survey is completed.
(1) Competitive offers. NMFS may initiate a competitive
solicitation (request for proposals or RFP) to select
[[Page 36618]]
vessels to conduct resource surveys that use fish as full or partial
compensation, following normal Federal procurement procedures.
(2) Consultation and approval. At a Council meeting, NMFS will
consult with the Council and receive public comment on upcoming
resource surveys to be conducted if groundfish could be used as whole
or partial compensation. Generally, compensation fish would be similar
to surveyed species, but there may be reasons to provide payment with
healthier, more abundant, less restricted stocks, or more easily
targeted species. For example, NMFS may decline to pay a vessel with
species that are, or are expected to be, overfished, or that are
subject to overfishing, or that are unavoidably caught with species
that are overfished or subject to overfishing. NMFS also may also
consider levels of discards, bycatch, and other factors. If the Council
does not approve providing whole or partial compensation for the
conduct of a survey, NMFS will not use fish, other than fish taken
during the scientific research, as compensation for that survey. For
each proposal, NMFS will present:
(i) The maximum number of vessels expected or needed to conduct the
survey,
(ii) An estimate of the species and amount of fish likely to be
needed as compensation,
(iii) When the survey and compensation fish would be taken, and
(iv) The year in which the compensation fish would be deducted from
the ABC before determining the harvest guideline or quota.
(3) Issuance of the compensation EFP. Upon successful completion of
the survey, NMFS will issue a ``compensation EFP'' to the vessel if it
has not been fully compensated. The procedures in Sec. 600.745(b)(1)
through (b)(4) of this chapter do not apply to a compensation EFP
issued under this subpart for the Pacific coast groundfish fishery (50
CFR part 660, subpart G).
(4) Terms and conditions of the compensation EFP. Conditions for
disposition of bycatch or any excess catch, for reporting the value of
the amount landed, and other appropriate terms and conditions will be
specified in the EFP. Compensation fishing must occur during the period
specified in the EFP, but no later than the end of September of the
fishing year following the survey, and must be conducted according to
the terms and conditions of the EFP.
(5) Reporting the compensation catch. The compensation EFP may
require the vessel owner or operator to keep separate records of
compensation fishing and to submit them to NMFS within a specified
period of time after the compensation fishing is completed.
(6) Accounting for the compensation fish. As part of the annual
specification process (Sec. 660.321), NMFS will advise the Council of
the amount of fish retained under a compensation EFP, which then will
be deducted from the next year's ABCs before setting the HGs or quotas.
Fish taken too late in the year to be deducted from the following
year's ABC will be accounted for in the next management cycle
practicable.
(b) EFP with a compensation clause. An EFP may be issued to a
commercial fishing vessel for the purpose of collecting resource
information in excess of current management limits (Sec. 600.745(b) of
this chapter). The EFP may include a compensation clause that allows
the participating vessel to be compensated with fish for its efforts to
collect resource information according to NMFS' approved protocol. If
compensation with fish is requested in an EFP application, or proposed
by NMFS, the following provisions apply in addition to those at
Sec. 600.745(b) of this chapter.
(1) Application. In addition to the requirements in Sec. 600.745(b)
of this chapter, application for an EFP with a compensation clause must
clearly state whether a vessel's participation is contingent upon
compensation with groundfish and, if so, the minimum amount (in metric
tons, round weight) and the species. As with other EFPs issued under
Sec. 600.745 of this chapter, the application may be submitted by any
individual, including a state fishery management agency or other
research institution.
(2) Denial. In addition to the reasons stated in
Sec. 600.745(b)(3)(iii) of this chapter, the application will be denied
if the requested compensation fishery, species, or amount is
unacceptable for reasons such as, but not limited to, the following:
NMFS concludes the value of the resource information is not
commensurate with the value of the compensation fish; the proposed
compensation involves species that are (or are expected to be)
overfished or subject to overfishing, fishing in times or areas where
fishing is otherwise prohibited or severely restricted, or fishing for
species that would involve unavoidable bycatch of species that are
overfished or subject to overfishing; or NMFS concludes the information
can reasonably be obtained at less cost to the resource.
(3) Window period for other applications. If the RA or designee
agrees that compensation should be considered, then a window period
will be announced in the Federal Register during which additional
participants will have an opportunity to apply. This notification would
be made at the same time as announcement of receipt of the application
and request for comments required under Sec. 660.745(b). If there are
more qualified applicants than needed for a particular time and area,
NMFS will choose among the qualified vessels, either randomly, in order
of receipt of the completed application, or by other impartial
selection methods. If the permit applicant is a state, university, or
Federal entity other than NMFS and NMFS approves the selection method,
the permit applicant may chose among the qualified vessels, either
randomly, in order of receipt of the vessel application, or by other
impartial selection methods.
(4) Terms and conditions. The EFP will specify the amounts that may
be taken as scientific samples and as compensation, the time period
during which the compensation fishing must occur, management measures
that are waived while fishing under the EFP, and other terms and
conditions appropriate to the fishery and the collection of resource
information. NMFS may require compensation fishing to occur on the same
trip that the resource information is collected.
(5) Accounting for the catch. Samples taken under this EFP, as well
as any compensation fish, are counted toward the current year's catch
or landings.
[FR Doc. 98-17937 Filed 7-1-98; 3:32 pm]
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