[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3435-3437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1379]



[[Page 3435]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 990113011-9011-01; I.D. 010699A]
RIN 0648-AM06


Fisheries of the Exclusive Economic Zone Off Alaska; Observer and 
Inseason Management Requirements for Pollock Catcher/Processors

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

ACTION: Emergency interim rule; request for comments.

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SUMMARY: NMFS issues an emergency interim rule to establish additional 
observer coverage requirements for 20 catcher/processor (C/P) vessels 
identified in the American Fisheries Act (AFA). NMFS also is 
establishing inseason authority to manage the non-pollock harvest 
limitations required under the AFA for these 20 vessels. These actions 
are necessary to monitor and manage the harvest of the listed C/Ps. 
Their goal is to comply with the intent of the statutory provisions 
promulgated under the AFA for these vessels in 1999.

DATES: Effective January 20, 1999, through July 19, 1999. Comments must 
be received by February 8, 1999.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to 
the Federal Building, 709 West 9th Street, Juneau, AK. Copies of the 
Environmental Assessment prepared for this emergency rule may be 
obtained from the same address.

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

SUPPLEMENTARY INFORMATION: MFS manages the U.S. groundfish fisheries of 
the Bering Sea and Aleutian Islands management area (BSAI) in the 
Exclusive Economic Zone (EEZ) pursuant to the Fishery Management Plan 
for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area 
(FMP). The North Pacific Fishery Management Council (Council) prepared 
the FMP pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. 
Regulations implementing the FMP appear at 50 CFR part 679. General 
regulations at 50 CFR part 600 also apply.
    On October 20, 1998, the President signed the AFA into law. The AFA 
specifies the manner in which the BSAI pollock fishery must be managed, 
as well as measures to limit activity of pollock vessels in non-pollock 
fisheries. Section 208(e)(1) through (20) of the AFA lists C/Ps that 
are subject to specific harvest limitations for pollock and non-pollock 
species starting in 1999 (listed C/Ps). These harvest limitations will 
be established for 1999 as part of the 1999 groundfish specification 
process authorized under regulations at 50 CFR Sec. 679.20. NMFS must 
implement additional observer coverage and inseason management 
authority necessary to monitor and manage these harvest limitations at 
the start of the 1999 fishing season. By regulation, the fishing season 
begins on January 20, 1999. At its November 1998 meeting, the Council 
recommended that these measures be implemented by emergency rule. The 
justification for, and a description of, these measures are discussed 
below.

Observer Coverage for Listed C/Ps

    For the 1999 fishing year, section 211(b)(6) of the AFA requires 
only those listed C/Ps that are approved to participate in the 1999 
multispecies groundfish community develop quota (MSCDQ) program to 
carry two observers and weigh catch on a scale on board approved by 
NMFS. For the 2000 fishing year, the AFA statutory provisions state 
that all 20 listed C/Ps shall (1) have two observers aboard at all 
times while groundfish are being harvested, processed, or received from 
another vessel in any fishery under the authority of the Council; and 
(2) weigh their catch on board on a NMFS-approved scale while 
harvesting groundfish in fisheries under the Council's authority.
    CDQ groups have proposed that twelve of the twenty listed C/Ps 
participate in the 1999 MSCDQ program. The AFA requires that each of 
these 12 vessels that is approved to participate in the 1999 MSCDQ 
program have two observers aboard and weigh its catch on NMFS-approved 
scales at all times the vessel is used to fish for groundfish in 1999. 
These additional observer coverage requirements under the AFA for 
listed C/Ps do not change current observer coverage requirements for 
these vessels during their participation in the 1999 MSCDQ fisheries.
    Current regulations at 50 CFR Sec. 679.50 require the remaining 
eight listed C/Ps to have only one observer aboard at all times the 
vessel is used to fish in 1999. NMFS does not believe that one observer 
can adequately monitor the catch and associated harvest limitations 
specified for the listed C/Ps. Furthermore, a contract implementing a 
fishery cooperative under section 210 of the AFA among listed C/Ps and 
catcher vessels eligible to deliver pollock to listed C/Ps was filed 
with the Council and the Secretary of Commerce on December 20, 1998. 
NMFS believes that the reliance on observer data for compliance 
monitoring and on management of pollock catch amounts taken by listed 
C/Ps in the directed fishery for pollock or as incidental catch in non-
pollock fisheries becomes increasingly important under such a fishery 
cooperative. Under a fishery cooperative, contract agreements would be 
established that essentially allocate specific amounts of pollock to 
individual vessels for purposes of directed fishing. Amounts of the 
non-pollock groundfish harvest limitations specified for the listed C/
Ps also would be allocated under the fishery cooperative among 
individual vessels. Although NMFS does not intend to actively manage 
individual vessel groundfish harvests under the cooperative, it is 
challenged to ensure that overall groundfish or prohibited species 
catch harvest limitations are not exceeded and that the incidental 
catch of pollock taken in non-pollock groundfish fisheries is not 
credited against the pollock directed fishing allowance established 
under section 206(b) of the AFA for vessels harvesting pollock for 
processing by the listed C/Ps. To meet these management challenges, 
more than one observer must be aboard to sample and provide information 
on an increased number of hauls. NMFS, therefore, is implementing by 
this emergency interim rule a requirement that two NMFS-certified 
observers be aboard each of the 20 listed C/Ps at all times the vessel 
is used to fish for groundfish in the EEZ off Alaska.
    In addition to the requirement that each listed C/P carry two NMFS-
certified observers, NMFS requires that at least one of the observers 
aboard each listed C/P have successfully completed the additional 
training necessary to be certified to observe in the MSCDQ fisheries. 
This requirement for at least one MSCDQ-certified observer is necessary 
to ensure that the compliance monitoring role of the observers aboard 
the listed C/Ps can be successfully accomplished. The AFA (section 
211(b)) requires that the C/Ps abide by harvest

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limitations that apply only to the C/Ps. In order to monitor and 
enforce these newly imposed limitations, observers with more experience 
and training must be aboard C/Ps. NMFS-certified MSCDQ observers have 
that experience and training. MSCDQ observers receive special training 
in sampling for species composition in situations where bycatch may be 
limiting, in working with vessel personnel to resolve access to catch 
and other sampling problems, and in using flow scales for catch weight 
measurements. Monitoring by MSCDQ-certified observers is essential for 
accurate catch accounting, given the fact that a fishery cooperative 
has been established and that the potential exists for fishing to be 
curtailed when either groundfish or prohibited species harvest 
limitations specified for listed C/Ps have been reached.
    Under this emergency interim rule, only one of the two observers is 
required to be MSCDQ certified so that the supply of these observers to 
the MSCDQ program is not jeopardized in 1999. NMFS notes that 
subsequent rulemaking establishing observer coverage requirements for 
listed C/Ps after 1999 could require both observers to be MSCDQ 
certified. Also, the MSCDQ-certified observer required by this 
emergency rule is not required to be trained as a ``lead CDQ observer'' 
as described at 50 CFR Sec. 679.50(h)(1)(i)(E). A detailed discussion 
on the justification for additional observer training and certification 
criteria for individual vessel monitoring programs was provided both in 
the preamble to the proposed rule (62 FR 43866, August 15, 1997) and in 
the preamble to the final rule (63 FR 30381, June 4, 1998) implementing 
the MSCDQ program.

Inseason Authority to Manage Listed C/P Harvest Limits

    Congress was concerned that, given the ability to form fishery 
cooperatives in 1999, listed C/Ps may utilize the benefits realized 
from fishery cooperatives and enter into or increase fishing effort in 
fisheries other than the pollock fishery. Section 211(b) of the AFA 
seeks to protect non-pollock fisheries from major and non-traditional 
redistributed fishing effort by listed C/Ps. To accomplish this, 
provisions under section 211(b)(2) establish harvest limitations for 
non-pollock groundfish and prohibited species that apply to listed C/Ps 
and that are based on historical catch amounts. These harvest 
limitations will be specified in the 1999 proposed, interim, and final 
BSAI groundfish specifications under 50 CFR Sec. 679.20. Many of these 
harvest limitations are small amounts of fish that will not support a 
directed fishery for those species or species groups.
    Current regulations do not clarify the inseason action NMFS will 
implement to maintain the harvest of non-pollock by listed C/Ps within 
specified harvest limitations mandated by the AFA under section 211(b). 
With clarification under this emergency rule, NMFS announces its intent 
to set a directed fishing allowance and close a groundfish species to 
directed fishing by the listed C/Ps when a harvest limitation specified 
for that species has been or will be reached. Additionally, NMFS lacks 
the regulatory authority to apply a directed fishing closure only to 
the 20 listed C/Ps when one or more of these non-pollock species may be 
available to directed fishing by other vessels. Furthermore, NMFS lacks 
regulatory authority under Sec. 679.21(e)(7) to close directed fishing 
for all non-pollock groundfish by the listed C/Ps if NMFS determines 
that these vessels have reached a prohibited species harvest 
limitation.
    This action is necessary to provide NMFS with the inseason 
management tools necessary to ensure that the management of specified 
harvest limitations will minimize the potential of a limit being 
exceeded while optimizing the opportunity to harvest the pollock 
directed fishing allowance allocated to vessels under section 206(b)(2) 
of the AFA for processing by the listed C/Ps.
    Under this emergency rule, NMFS will establish directed fishing 
allowances for the non-pollock groundfish harvest limitations when it 
appears that one or more of these amounts have been or will be reached. 
The attainment of a non-pollock groundfish or prohibited species 
harvest limitation established under section 211(b)(2) of the AFA will 
not prohibit the listed C/Ps from participating in the directed fishery 
for pollock with pelagic trawl gear. However, the attainment of a non-
pollock groundfish species harvest limitation established under section 
211(b)(2) of the AFA will prohibit the listed C/Ps from participating 
in the directed fishery for that species. Also, the attainment of a 
prohibited species harvest limitation while fishing for non-pollock 
groundfish species will result in the closure of the applicable area to 
directed fishing for all non-pollock groundfish species. Bycatch or 
bycatch mortality of prohibited species taken by the listed C/Ps while 
participating in the pollock fishery will be credited against the 
respective prohibited species bycatch allowances specified for the 
pollock fishery. Consistent with existing regulations, attainment of a 
bycatch allowance specified for the pollock fishery will result in 
closure of a specified area to directed fishing for pollock with non-
pelagic trawl gear.
    NMFS anticipates that this emergency rule will limit the listed C/
Ps' opportunity to participate in non-pollock groundfish fisheries. For 
example, in order for the listed C/Ps to participate in a directed 
fishery for a non-pollock groundfish species, the specified harvest 
limit for this species must be sufficiently large to support a directed 
fishery by the listed C/Ps. If NMFS determines that the amount is not 
sufficiently large to support a directed fishery by the listed C/Ps, 
directed fishing for the non-pollock groundfish species will be closed. 
When directed fishing for a non-pollock groundfish species is closed, 
the listed C/Ps may continue to retain amounts of that species up to 
the maximum retainable bycatch amounts established in regulations at 
Sec. 679.20(e) and (f).

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is necessary to respond to an emergency situation and 
that it is consistent with the Magnuson-Stevens Act and other 
applicable laws.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    This emergency interim rule has been determined to be not 
significant for purposes of E.O. 12866.
    NMFS finds that there is good cause to waive the requirement to 
provide prior notice and an opportunity for public comment pursuant to 
authority set forth at 5 U.S.C. 553(b)(B). This action is necessary to 
implement the requirements of the AFA as they relate to the pollock 
fishery. Delaying the start of the pollock fishery beyond its scheduled 
regulatory start date of January 20, 1999, would conflict with 
investment-backed expectations of the regulated community and could 
disrupt supply of seafood products to U.S. markets and consequently 
would be contrary to the public interest. Likewise, the need to avoid 
delaying the start of the pollock season constitutes good cause to 
waive, pursuant to authority set forth at 5 U.S.C. 553(d)(3) the 
thirty-day delay in effective date otherwise required by 5 U.S.C. 
553(d). In addition, the regulated industry has been aware that these 
new requirements would be necessary since the October 1998 Council 
meeting and have had ample

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time to prepare for coming into compliance making a thirty-day delay in 
effective date unnecessary.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with that directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this emergency 
interim rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: January 15, 1999.
Andrew A. Rosenberg,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

50 CFR CHAPTER VI

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

    1. The authority citation for 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, a definition of ``American Fisheries Act'' is 
added in alphabetical order to read as follows:


Sec. 679.2  Definitions.

* * * * *
    American Fisheries Act (AFA) (applicable through July 19, 1999) 
means Title II--Fisheries, Subtitles I and II, as cited within the 
Omnibus Appropriations Bill FY99 (Pub. L. 105-277).
* * * * *
    3. In Sec. 679.20, paragraph (d)(1)(iv) is added to read as 
follows:


Sec. 679.20  General limitations.

* * * * *
    (d) * * *
    (1) * * *
    (iv) American Fisheries Act harvest limitations (applicable through 
July 19, 1999). (A) If the Regional Administrator determines that any 
harvest limitation of groundfish other than pollock, established under 
section 211(b)(2) (A) or (C) of the American Fisheries Act for catcher/
processors identified in section 208(e)(1) through (20) of that Act, 
has been or will be reached, the Regional Administrator may establish a 
directed fishing allowance for the species or species group applicable 
only to those identified catcher/processors.
    (B) In establishing a directed fishing allowance under paragraph 
(d)(1)(iv)(A) of this section, the Regional Administrator shall 
consider the amount of the harvest limitation established under section 
211(b)(2) (A) or (C) of the American Fisheries Act that will be taken 
as incidental catch by those catcher/processors identified in section 
208(e) (1) through (20) of that Act in directed fishing for other 
species.
    4. In Sec. 679.21, paragraphs (e)(3)(v) and (e)(7)(ix) are added to 
read as follows:


Sec. 679.21  Prohibited species bycatch management.

* * * * *
    (e) * * *
    (3) * * *
    (v) American Fisheries Act prohibited species catch limitations 
(applicable through July 19, 1999). The aggregate amounts of any crab, 
halibut or herring trawl PSC limit caught by the catcher/processors 
identified under section 208(e)(1) through (20) of the American 
Fisheries Act and counted against the bycatch allowances specified for 
the fishery categories defined under paragraphs (e)(3)(iv)(B) through 
(E) of this section shall be limited to the amounts established under 
section 211(b)(2)(B) of that Act and published in the Federal Register 
under paragraph (e)(6) of this section.
* * * * *
    (7) * * *
    (ix) Closures under the American Fisheries Act prohibited species 
catch limitations (applicable through July 19, 1999). When the Regional 
Administrator determines that the catcher/processors identified under 
section 208(e)(1) through (20) of the American Fisheries Act have 
caught the amount of any crab, halibut, or herring prohibited species 
catch limitation specified under paragraph (e)(3)(v) of this section, 
directed fishing for groundfish by those vessels will be prohibited in 
the applicable area defined under this paragraph (e)(7), except for 
pollock with pelagic trawl gear.
* * * * *
    5. In Sec. 679.50, paragraph (c)(5) is added to read as follows:


Sec. 679.50  Groundfish Observer Program applicable through December 
21, 2000.

* * * * *
    (c) * * *
    (5) Observer coverage under the American Fisheries Act (applicable 
through July 19, 1999). Any catcher/processor listed under section 
208(e)(1) through (20) of the American Fisheries Act is required to 
have two observers aboard the vessel any day it harvests, receives, or 
processes groundfish. One of the two observers must meet the 
qualifications described at paragraph (h)(1)(i)(D) of this section.
* * * * *
[FR Doc. 99-1379 Filed 1-15-99; 5:01 pm]
BILLING CODE 3510-22-F