[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Rules and Regulations]
[Pages 40812-40814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17238]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030128023-3158-02; I.D. 011503D]
RIN 0648-AQ44


Fisheries of the Exclusive Economic Zone Off Alaska; Increase in 
Roe Retention Limit for Pollock Harvested in the Bering Sea and 
Aleutian Islands

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

ACTION: Final rule.

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SUMMARY: This final rule increases from 7 to 9 percent the percentage 
of pollock roe that may be retained by operators of catcher/processors 
and motherships processing pollock harvested in the Bering Sea and 
Aleutian Islands Management Area. This action is necessary because 
catcher/processors and motherships have been able to increase their 
pollock roe recovery rate since the passage of the American Fisheries 
Act (AFA) through cooperative fishing practices and more precise timing 
of fishing activity. This action is intended to be consistent with the 
environmental and socioeconomic objectives of the Magnuson-Stevens 
Fishery Management and Conservation Act (Magnuson-Stevens Act) and 
other applicable laws.

DATES: Effective August 8, 2003.

ADDRESSES: Copies of the Categorical Exclusion and Regulatory Impact 
Review prepared for this action may be obtained from Lori Durall, NMFS, 
Alaska Region, P.O. Box 21668, Juneau, AK 99802, 907-586-7247

FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228, or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
Management Area (BSAI) under 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, and 
NMFS approved, the FMP under the authority of the Magnuson-Stevens Act 
(16 U.S.C. 1801, et seq.). Regulations implementing the FMP appear at 
50 CFR part 679. General regulations governing U.S. fisheries also 
appear at 50 CFR part 600.

Background

    NMFS published a proposed rule to raise the maximum retainable 
percentage of pollock roe from 7 to 9 percent on February 11, 2003 (68 
FR 6865), with comments invited through March 13, 2003. Two letters of 
comment were received by the end of the comment period and are 
responded to in the response to comments section. Additional background 
on the development of roe stripping regulations and the purpose and 
need for this action are contained in the preamble to the proposed 
rule.
    This final rule raises the maximum retainable percentage of pollock 
roe

[[Page 40813]]

from 7 to 9 percent to accommodate increased roe recovery rates that 
have been attained by industry since the passage of the American 
Fisheries Act (AFA). Under the AFA, vessels in the BSAI pollock fishery 
have formed voluntary cooperatives that have eliminated the open access 
race for fish that characterized the BSAI pollock fishery before the 
AFA. Under these AFA cooperatives, participating catcher/processors and 
motherships have been able to dramatically improve product recovery 
rates by slowing down their operations, using more refined production 
techniques, and fishing more selectively. This increase in productivity 
under the AFA was examined in detail in the final Environmental Impact 
Statement prepared for AFA-related Amendments 61/61/13/8 to the FMPs 
for the groundfish, crab, and scallop fisheries off Alaska.
    In addition to these general gains in productivity, catcher/
processors and motherships have achieved higher roe recovery rates 
under the AFA through an increased ability to time their fishing 
activity to coincide with periods of peak roe recovery and through an 
increased ability to selectively target schools of large mature 
pollock. When circumstances are ideal, some catcher/processors and 
motherships have reached or exceeded the current 7-percent limit.
    In 1999, the Council examined roe recovery rates by catcher/
processors in the BSAI and concluded that sufficient rationale existed 
to raise the maximum retainable roe amount to 9 percent. After 
reviewing data on roe recovery rates, NMFS agreed with the Council's 
rationale.
    To determine the appropriate roe retention limit under the AFA, 
NMFS examined roe recovery information from the 2000, 2001, and 2002 
roe seasons, which were managed under AFA cooperatives. During this 
time period, AFA catcher/processors and motherships processed 26,286 mt 
of pollock roe and 826,913 mt round-weight equivalent of primary 
pollock products for an aggregate roe recovery rate of 3.2 percent for 
the 2000-2002 roe seasons. However, during each of the 3 years, certain 
vessels were able to achieve roe recovery rates that exceeded 7 percent 
during weeks of peak roe recovery. In 2000, one catcher/processor 
achieved roe recovery rates of 8.0 and 9.0 percent during two reporting 
weeks in March. In 2001, seven catcher/processors exceeded the 7-
percent limit during the week of March 24. During that week, these 
seven catcher/processors achieved an aggregate roe recovery rate of 8.4 
percent. In 2002, only one catcher/processor exceeded the 7-percent 
limit, with a roe recovery rate of 8.3 percent during the week of March 
17. During this 3-year time period, these excesses totaled 185.6 mt of 
roe product, or 61.9 mt annually.
    This action also affects non-AFA catcher/processors that engage in 
directed fishing for other groundfish species in the BSAI and encounter 
incidental catch of pollock. The maximum retainable percentage of 
pollock is 20 percent for vessels engaged in directed fishing for other 
groundfish species. Existing requirements at 50 CFR 679.27 require 
vessels engaged in directed fishing for groundfish other than pollock 
to retain all incidental catch of pollock up to the 20-percent maximum 
retainable percentage limit. Such vessels also are allowed to recover 
roe from their incidental catch of pollock. Under this final rule, 
catcher/processors that are engaged in directed fishing for species 
other than pollock also are allowed to retain pollock roe up to the 9-
percent limit.

Response to Comments

    NMFS received two comment letters by the end of the comment period 
on the proposed rule, both in favor of this action, but questioning the 
need for any retention limit. These comments are summarized and 
responded to here.
    Comment 1: The United States Surimi Commission (USSC) supports the 
proposed increase in the roe-retention limit but would prefer a total 
removal of the roe retention restriction on the grounds that such a 
limit is redundant and unnecessary in light of subsequently adopted 
management measures that more effectively govern utilization rates 
onboard at-sea processing vessels in the BSAI pollock fishery. Since 
the passage of the AFA, the catcher/processors represented by USSC are 
producing nearly 50 percent more processed pollock per ton of catch 
than they were prior to the passage of the AFA. While overall roe 
recovery rates still average less than 7 percent, it is not unusual for 
vessels to encounter schools of fish at certain times of the year and 
in certain areas where the actual roe content of the catch exceeds 7 
percent. In such instances, fishermen are faced with the dilemma of 
having to throw away the most valuable product they make in order to 
comply with an antiquated rule that was designed over a decade ago to 
discourage wasteful fishing and processing practices that are no longer 
extant in the fishery. An increase in the retention limit from 7 to 9 
percent would help reduce the number of such instances. It would not, 
however, completely eliminate the possibility of vessels having to 
discard roe as roe recovery rates sometimes exceed 9 percent.
    The better solution would be to eliminate the roe retention limit 
altogether. Although a roe retention limit may have been necessary in 
the past, it has long since outlived its usefulness insofar as the 
avoidance of wasteful fishing practices are concerned. Furthermore, all 
AFA catcher/processors now carry 2 full-time federal observers, must 
weigh all their catch on NMFS certified flow scales, and must comply 
with the requirements of the improved retention/improved utilization 
(IR/IU) program, which mandates 100 percent retention of pollock. Each 
of these measures are more than adequate to ensure that vessels are 
complying with the statutory ban on roe-stripping. For these reasons, 
the USSC would prefer to see the roe retention limit eliminated 
altogether rather than an upwards adjustment of an arbitrary limit that 
could still result in fishermen having to throw away portions of the 
most valuable product they produce. Such a result would seem to be 
dictated by National Standard 7's mandate that management measures 
``minimize costs and avoid unnecessary duplication.''
    Response: As noted in the preamble to the proposed rule, the 
Council and NMFS considered and rejected the alternative of eliminating 
the roe retention limit for two reasons:
    First, AFA cooperatives that have produced a more rationalized 
fishery are not necessarily permanent. AFA cooperatives, which are 
voluntary organizations, could dissolve at any point in the future if 
the members no longer believe that remaining in cooperatives is in 
their interest. The fishery then could potentially return to a race-
for-fish in which wasteful practice could again emerge. By raising the 
retention limit so that it does not exceed 9 percent, this rule 
provides a direct incentive to continue participation in the AFA 
cooperatives which have contributed to the higher utilization of raw 
product and the increased efficiency of higher roe yields.
    Second, non-AFA catcher/processors engaged in directed fisheries 
for other species are required to retain incidental catch of pollock up 
to the 20-percent maximum retainable percentage. The 9 percent maximum 
retainable roe percentage is an additional measure to reduce incentives 
by vessel operators to sort incidental catch of pollock for roe bearing 
fish. Such activity could increase discard amounts in a manner 
inconsistent with the intent of

[[Page 40814]]

regulations intended to prevent roe stripping and reduce discard 
amounts under IR/IU. Therefore, maintaining a regulatory limit on roe 
retention is prudent to prevent the potential for a return to the 
practice of roe stripping in the event that the current AFA 
cooperatives chose to dissolve and to continue to limit the practice of 
roe stripping by vessels in non-AFA fisheries.
    NMFS examined roe recovery data from 2000 to 2002 demonstrating 
that recovery rates have increased during some weekly periods from less 
than 7 percent to 8 and 9 percent. This data suggests that a recovery 
rate of 9 percent represents a current upper limit for AFA catcher 
processors and motherships. This rate of 9 percent is sufficient to 
capture the benefits of a higher recovery rate while avoiding the costs 
associated with discarding roe. Therefore, NMFS has determined that 
establishing a 9 percent roe retention limit is consistent with 
National Standard 7.
    Comment 2: The At-sea Processors Association (APA) questions the 
need for any limit on the percentage of roe that may be retained in the 
BSAI pollock fishery given that: (1) There is no economic or other 
incentive for vessels in the directed pollock fishery to conduct roe 
stripping under the current management regime, (2) other rules and 
regulations now make roe stripping illegal and impractical, and (3) 
even a 9 percent cap could still result in the undesirable consequence 
of forcing fishermen to discard their most valuable product. For all of 
these reasons, APA would prefer to see the pollock roe retention cap 
eliminated altogether in the directed pollock fishery. On the other 
hand, if elimination of the cap is not an option in the context of the 
current rulemaking, it is essential that the cap be raised to the 
maximum extent possible. The current 7 percent cap is unrealistically 
low. It unnecessarily forces fishermen to discard a very valuable 
product and thwarts efforts to extract more value (and more edible 
protein) out of the nation's limited fishery resource.
    Response: See response to comment 1.

Elements of the Final Rule

    This final rule amends 50 CFR 679.20(g) by raising the maximum 
allowable roe retention percentage from 7 to 9 percent for pollock 
harvested in the BSAI. No changes were made from the proposed rule.

Classification

    The Administrator, Alaska Region, NMFS, determined that this final 
rule is necessary for the conservation and management of the BSAI 
groundfish fishery and that it is consistent with the Magnuson-Stevens 
Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for 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 the economic impact of this action. As a result, a 
regulatory flexibility analysis was not prepared.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: July 1, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set forth in the preamble, 50 CFR part 679 is amended 
as follows:

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

0
1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 
3631 et seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, 
Pub. L. 106-31, 113 Stat. 57.

0
2. In Sec.  679.20, paragraphs (g)(1)(i), (g)(4)(i)(B), and 
(g)(4)(ii)(B) are revised to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (g) * * *
    (1) * * *
    (i) Pollock roe retained on board a vessel at any time during a 
fishing trip must not exceed the following percentages of the total 
round-weight equivalent of pollock, as calculated from the primary 
pollock product on board the vessel during the same fishing trip:
    (A) 7 percent in the Gulf of Alaska, and
    (B) 9 percent in the Bering Sea and Aleutian Islands.
* * * * *
    (4) * * *
    (i) * * *
    (B) To determine the maximum amount of pollock roe that can be 
retained on board a vessel during the same fishing trip, multiply the 
round-weight equivalent by 0.07 in the Gulf of Alaska or 0.09 in the 
Bering Sea and Aleutian Islands.
* * * * *
    (ii) * * *
    (B) To determine the maximum amount of pollock roe that can be 
retained on board a vessel during a fishing trip, add the round-weight 
equivalents together; then, multiply the sum by 0.07 in the Gulf of 
Alaska or 0.09 in the Bering Sea and Aleutian Islands.
* * * * *
[FR Doc. 03-17238 Filed 7-8-03; 8:45 am]
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