[Federal Register Volume 69, Number 19 (Thursday, January 29, 2004)]
[Proposed Rules]
[Pages 4281-4285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1810]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 040105003-4003-01; I.D. 122203F]
RIN 0648-AR41


Fisheries of the Exclusive Economic Zone Off Alaska; General 
Limitations

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes amending regulations establishing pollock 
Maximum Retainable Amounts (MRA) by adjusting the MRA enforcement 
period for pollock harvested in the Bering Sea and Aleutian Islands 
management area (BSAI) from enforcement at anytime during a fishing 
trip to enforcement at the time of offload. This action is necessary to 
reduce regulatory discards of pollock caught incidentally in the 
directed fisheries for non-pollock groundfish species. The intended 
effect of this action is to better utilize incidentally

[[Page 4282]]

caught pollock in accordance with the goals and objectives of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and the Fishery Management Plan for the Groundfish Fishery 
of the Bering Sea and Aleutian Islands Area (FMP).

DATES: Comments must be received by March 1, 2004.

ADDRESSES: Comments may be mailed to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall. Hand delivery 
or courier delivery of comments may be sent to NMFS, 709 West 9th 
Street, Room 420, Juneau, AK 99801. Comments may also be sent via 
facsimile to 907-586-7557. As an agency pilot test for accepting 
comments electronically, the Alaska Region, NMFS, will accept e-mail 
comments on this rule. The mailbox address for providing e-mail 
comments on this rule is [email protected]. Copies of the 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) prepared for the proposed rule may 
be obtained from the Sustainable Fisheries Division, Alaska Region, 
NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall, or by 
calling the Alaska Region, NMFS, at (907) 586-7228.

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

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the U.S. groundfish fisheries of the BSAI in the 
Exclusive Economic Zone under the FMP. The North Pacific Fishery 
Management Council (Council) prepared the FMP pursuant to the Magnuson-
Stevens Act. Regulations implementing the FMP appear at 50 CFR part 
679. General regulations that pertain to U.S. fisheries appear at 
subpart H of 50 CFR part 600.
    This proposed action is one of several adopted by the Council to 
decrease regulatory and economic discards and increase catch 
utilization in the BSAI groundfish fisheries. Amendment 49 to the FMP 
was published as a final rule January 3, 1998 (62 FR 63880), and 
established retention and utilization standards for pollock and Pacific 
cod. In June 2003, the Council adopted Amendment 79 to the FMP, which 
would establish a minimum groundfish retention standard (GRS) for 
specified vessels in the BSAI. Along with Amendment 79, the Council 
also adopted a revision to the MRA enforcement period for pollock 
harvested by non-American Fisheries Act (AFA) vessels in the BSAI. 
Prior to the June Council actions, the proposed GRS program and pollock 
MRA revision were considered as components of one action to reduce 
discard amounts in the BSAI. However, the Council recognized that the 
MRA change was simpler to implement than the GRS action and requested 
NMFS to expedite the proposed pollock MRA revision. In addition to 
these actions, the Council is considering sector allocations of BSAI 
groundfish and prohibited species, as well as the development of a 
fishery cooperative for non-AFA trawl catcher processors. The Council 
expects that the formation of a cooperative for non-AFA trawl catcher 
processors would eliminate the race for fish and provide vessel 
operators with the opportunity to change their behavior to avoid 
incidental catch and/or reduce discard amounts.

Maximum Retainable Amounts

    Regulations at 50 CFR 679.20(e) establish rules for calculating and 
implementing MRA amounts for groundfish species or species groups that 
are closed to directed fishing. The MRA amount is calculated as a 
percentage of the retained amount of species closed to directed fishing 
relative to the retained amount of basis species or species groups open 
for directed fishing. Table 11 to 50 CFR 679 lists retainable 
percentages for BSAI groundfish species. Amounts that are caught in 
excess of the MRA percentage must be discarded. Current regulations 
limit vessels to MRA amounts at any time during a fishing trip. Under 
regulations implementing Amendment 49 to the FMP, vessels must retain 
all incidental catch of pollock and Pacific cod up to the MRA amount 
and discard the rest.
    The EA/RIR/IRFA for this action [see ADDRESSES] demonstrates that 
over the last four years (1999 through 2002), pollock discards 
constitute the largest component of discards by non-AFA trawl catcher 
processors operating in the BSAI (18 percent of all non-AFA trawl 
catcher processor discards are pollock). Current levels of pollock 
caught incidentally by non-AFA trawl catcher-processors also 
significantly exceed the MRA. The analysis also demonstrated that other 
non-AFA vessels are only seldom affected by the MRA for pollock on a 
haul-by-haul basis. Because of the current regulatory structure which 
requires all non-AFA vessels to retain all incidental catch of pollock 
up to the MRA and to discard pollock at any point in time in which the 
MRA is exceeded, it is presumed that all of these pollock discards are 
regulatory discards.
    This proposed action is intended to increase the retention of 
pollock by non-AFA vessels in the BSAI, while not increasing the 
overall amount of pollock harvested by adjusting the MRA enforcement 
period so that the MRA for pollock caught in the BSAI by non-AFA 
vessels would be enforced at the time of offload rather than at any 
time during a fishing trip. Under the proposed regulations, vessels 
would be able to choose to retain pollock in excess of the MRA as long 
as the amount retained at the time of offload is at the current MRA 
percentage with respect to basis species or species groups retained. By 
allowing vessels to manage their MRA percentage for pollock on an 
offload-to-offload basis, additional pollock may be retained over the 
course of a fishing trip. For example, if a vessel operator catches 
pollock early in a trip in excess of the MRA amount, he or she may 
choose to retain the pollock and move to an area with lower incidental 
catch rates of pollock, thereby lowering the percentage of pollock 
retained, with respect to other basis species, prior to the offloading 
of catch. As long as the amount of pollock on board the vessel is at 
the appropriate MRA at the time of offload, the vessel operator would 
be in compliance.
    Participants in the directed pollock fishery have expressed concern 
that the adjusted enforcement period could lead to additional pollock 
catches and necessitate an increase in the amount of pollock allocated 
to the incidental catch allowance (ICA), with a consequent reduction in 
the amount of pollock allocated to the AFA directed pollock fisheries. 
The EA/RIR/IRFA prepared for this action demonstrates that the actual 
amount of incidentally caught pollock is consistently lower than the 
pollock ICA. However, the analysis acknowledges that if pollock were a 
desired catch for the non-AFA fleet, the proposed change to MRA 
regulations would allow vessels additional opportunity to ``top off'' 
their trips with additional pollock. While this behavior currently is 
possible, it has not been demonstrated by vessels in the non-AFA fleet.
    Currently, fisheries managers establish the pollock ICA through the 
annual harvest specification process. The ICA for an upcoming year is 
established based on an examination of the historical incidental catch 
of pollock in non-pollock fisheries. NMFS provides information to the 
Council annually to guide the ICA specification and will continue to 
make this

[[Page 4283]]

information available to the Council and interested public. The amount 
of pollock harvested by non-AFA eligible vessels would continue to be 
well documented. Should incidental catch rates or amounts increase, the 
Council could initiate regulatory action to reduce incidental catch 
rates to levels closer to historical amounts. Any adjustment to the ICA 
would occur within the annual harvest specification process.
    Current regulations at Sec. 679.20(d)(1)(iii)(B) require vessels to 
be in compliance with MRA regulations at any time during a fishing 
trip. The proposed action would enforce MRA amounts for pollock caught 
by non-AFA vessels in the BSAI only at the time of offload. Current 
regulations at Sec. 679.20(e) do not differentiate between catcher 
vessels and catcher processors. However, the definition of fishing trip 
is different for each vessel type and the MRA is enforced differently 
for each vessel type. Proposed regulations would clarify MRA 
requirements for catcher vessels at Sec. 679.20(e)(2)(iv). Catcher 
vessels may fish within more than one statistical reporting area during 
the same fishing trip. The proposed regulations would clarify that the 
lowest MRA for any of the areas where fish are harvested during a 
fishing trip would apply at any time during the fishing trip and would 
be enforceable instantaneously. This is the existing enforcement 
protocol. MRA requirements for catcher processors at Sec. 
679.20(e)(2)(v) would remain unchanged except to reference the proposed 
change to the pollock MRA accounting period from anytime during a 
fishing trip to the time of offload. These proposed changes would apply 
to vessels fishing in the Gulf of Alaska (GOA) and the BSAI.
    The proposed regulations at Sec. 679.20(e)(2)(vi) would make the 
MRA for pollock caught by non-AFA eligible vessels in the BSAI 
management area enforceable at the time of offload.

Increased Retention/Increased Utilization (IR/IU)

    Proposed changes to the IR/IU regulations would apply to vessels 
fishing in the Gulf of Alaska (GOA) and the BSAI
    Regulations at 679.27(c)(2) describe retention requirements for IR/
IU species. In Sec. 679.27, paragraphs (c)(2)(i)(B), (c)(2)(ii)(B), 
(c)(2)(iii)(B), and (i)(2) refer to the ``MRB'' amount when directed 
fishing for an IR/IU species is prohibited. ``MRB'' is an acronym for 
maximum retainable bycatch and was changed to MRA due to inconsistency 
with the definition of bycatch in the Magnuson-Stevens Act. The 
regulatory text in these paragraphs would be amended to reflect current 
language and to provide consistency with other regulatory text.
    Current regulations at Sec. 679.27(c)(2)(ii)(B) require vessels to 
retain IR/IU species up to the MRA amount for that species and are 
enforced at any time during a fishing trip. The proposed regulations 
would provide an exception for pollock caught by non-AFA eligible 
vessels in the BSAI.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, 
required by section 603 of the Regulatory Flexibility Act (RFA).
    The IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
described above. A copy of the IRFA is available from NMFS (see 
ADDRESSES). A summary of the analysis follows:
    The change in the enforcement period for the pollock MRA would 
apply to all non-AFA vessels that catch BSAI pollock as an incidental 
species, regardless of vessel size, gear type or target fishery. 
However, non-AFA trawl catcher processors (head-and-gut sector) catch 
significant amounts of pollock incidentally in other groundfish 
fisheries. Other non-AFA vessels are seldom affected by the MRA for 
pollock on a haul-by-haul basis.
    In recent years, 23 to 24 vessels in the head-and-gut trawl catcher 
processor sector have fished in the BSAI. Ownership of the active 
vessels is concentrated in 10 companies. One of the listed companies is 
an independent company that acts as a manager of four vessels, each of 
which is an independently owned corporation with different ownership 
structures. Therefore, the IRFA treated these vessels as four 
independent companies. Analysis of the three year average of estimated 
annual receipts of the head-and-gut trawl catcher processor sector 
indicated that 1 of the 13 companies operating in the sector in 2002 
would have been defined as a small entity with receipts of less than 
$3.5 million. The company operates a single vessel that is less than 
125 feet.
    During the development of the GRS, several options regarding the 
MRA for pollock were developed and discussed, including several options 
relating to the time interval for enforcement, as well as options to 
alter the MRA percent during the season. The status quo is the first 
alternative to the preferred action. Under the status quo alternative, 
the MRA for pollock continues to be enforced on an instantaneous basis, 
i.e., it is unlawful for a vessel to retain pollock in an amount that 
exceeds the MRA at any time during a fishing trip. The status quo would 
not lead to increased retention of pollock caught by non-AFA vessels in 
the BSAI. The status quo was rejected because it would not accomplish 
the objectives of the action. As noted, this alternative remains the 
``baseline'' for purposes of the MRA analysis.
    A second alternative was considered, i.e., to change the MRA 
enforcement interval for pollock. This alternative would change the 
enforcement of the pollock MRA to a set interval of time. Modifying the 
time of enforcement to an interval of time would allow vessels that 
would have otherwise been forced to discard pollock to retain 
additional pollock, as long as they were under the MRA for the 
specified interval. For example, suppose a vessel's first haul of a 
trip is 25 percent pollock. Under the current instantaneous enforcement 
rules, the vessel would be required to discard at least 5 percent of 
the haul. Under a modified enforcement interval the vessel would have 
the option of keeping the additional five percent, as long as the 
vessel's total retained pollock amounted to no more than 20 percent of 
retained non-pollock groundfish by the end of the specified enforcement 
interval. The MRA for pollock would remain at 20 percent. Only the 
enforcement accounting interval would be adjusted. Several enforcement 
intervals were considered as suboptions, but not adopted and are 
summarized in the EA/RIR/IRFA. While longer intervals were feasible 
from an enforcement perspective, they were judged by the Council as 
inconsistent with the problem statement and the goal to discourage 
covert targeting of pollock by non-AFA vessels. For example, if the MRA 
for pollock was calculated over the entire 'A' season it would be quite 
easy for non-AFA vessels to focus an entire trip on pollock (say, while 
roe content was at its peak) and still remain within the MRA. This 
would clearly be incongruous with the AFA which reserves the target 
pollock fishery exclusively for AFA eligible vessels and processors.
    The third alternative considered was to change the MRA percentage 
for pollock. This option would adjust the MRA percentage for pollock to 
allow for greater retention by head and gut trawl catcher processor 
(HT-CPs). Increasing

[[Page 4284]]

the MRA percentage for pollock could increase the retention of pollock 
by reducing the number of instances when a vessel caught enough pollock 
to necessitate pollock discards. On the other hand, there is the 
possibility that increasing the MRA percentage of pollock would also 
increase the incentive to catch more pollock. While the HT-CP sector 
currently operates well under its ICA for pollock, raising the MRA 
percentage for pollock could increase the chance that the ICA would 
have to be increased if the overall amount of retained pollock 
approached the current ICA. If the ICA increased, it would reduce the 
amount of pollock available to the directed fishery.
    The fourth alternative was also considered, namely, to allow 
fishery managers to adjust the MRA percentage for pollock in season. 
This option was rejected because the complexities of intra-season 
rulemaking made the option infeasible.
    The preferred alternative is to change the enforcement interval of 
the pollock MRA to an offload to offload basis. Modifying the 
enforcement period to an offload to offload interval would allow 
vessels that would have otherwise been forced to discard pollock to 
retain additional pollock, as long as they were under the MRA for the 
trip. For example, suppose a vessel's first haul of a trip is 25 
percent pollock. Under the current instantaneous enforcement rules, the 
vessel would be required to discard at least 5 percent of the haul. 
Under this alternative the vessel would have the option of keeping the 
additional five percent as long as the vessel's total retained pollock 
amounted to no more than 20 percent of retained non-pollock groundfish 
by the time of the next offload. The MRA for pollock would remain at 20 
percent. Only the enforcement accounting interval would be adjusted.
    While changing the enforcement interval for the pollock MRA is 
likely to result in an overall reduction of discards of pollock, the 
economic impact of the change on vessels specifically in the head and 
gut trawl catcher processor (HT-CP) sector is uncertain. The main 
factors that could determine the size and distribution of economic 
impact on the HT-CP sector are (1) the value of pollock relative to the 
value of groundfish normally caught by the sector, (2) the amount of 
pressure vessels operators are experiencing to reduce discards, and 3) 
strategic behavior of individual vessels.
    If pollock has a lower relative value than the targeted species, 
and vessels operate without regard to pressure to reduce discards, the 
change in the enforcement interval is unlikely to have any significant 
economic effect vessels will continue to discard pollock at current 
levels, while remaining within the retention requirements of IR/IU 
regulations. If, on the other hand, vessels choose to reduce discards 
of pollock to alleviate increasing pressure from the Council and the 
public at large, they could experience negative economic consequences. 
Assuming vessel catch is constrained by hold space, the amount of 
product from higher-valued species that would be displaced by the 
increased retention of pollock, under this scenario, may be 
substantial.
    If pollock has a higher relative value than other species in the 
catch, as it does during the pollock roe season, the impact on the HT-
CP sector from changing the enforcement accounting interval could be 
positive. Currently, pollock catches appear to be higher during the 
first part of the trip compared to latter parts of the trip. Under the 
current regulations, vessels are likely to be forced to discard 
valuable pollock during the early part of the trip until they have 
harvested and retained sufficient amounts of non-pollock target species 
to build up a ``ballast'' of retained product, which they can count 
against retained pollock. Then later in the trip they can ``top-off'' 
if they wish. Thus under the current regulations vessels may be forced 
to ``catch pollock'' twice if they wish to retain the maximum amount of 
pollock allowed. With the change in the regulation, again assuming 
pollock is a desired species, vessels will have the option to keep 
pollock caught in the early part of the trip, even if they have not yet 
caught and retained sufficient non-pollock species to comply with the 
MRA. Because they are able to keep all pollock as it comes on board, it 
is unlikely that vessels will need to ``top-off'' later in the trip. 
Thus the proposed action may reduce overall pollock catches by the HT-
CPs.
    The alternative allows non-AFA vessels to retain additional pollock 
caught incidentally in the BSAI management area, thereby helping to 
meet the Council's goals and objectives to reduce discards in the 
groundfish fisheries off Alaska.
    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities. This analysis did not 
reveal any Federal rules that duplicate, overlap or conflict with the 
proposed action.

List of Subjects in 50 CFR part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 13, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended to read 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. 679.20, paragraphs (d)(1)(iii)(B) and (e)(2)(iv) are 
revised and paragraphs (e)(2)(v) and (e)(2)(vi) are added to read as 
follows:


Sec. 679.20  General Limitations.

* * * * *
    (d) * * *
    (1) * * *
    (iii) * * *
    (B) Retention of incidental species. Except as described in 
679.20(e)(2)(vi), if directed fishing for a target species, species 
group, or the ``other species'' category is prohibited, a vessel may 
not retain that incidental species in an amount that exceeds the 
maximum retainable amount, as calculated under paragraphs (e) and (f) 
of this section, at any time during a fishing trip.
* * * * *
    (e) * * *
    (2) * * *
    (iv) For catcher vessels, the maximum retainable amount for vessels 
fishing during a fishing trip in areas closed to directed fishing is 
the lowest maximum retainable amount applicable in any area, and this 
maximum retainable amount must be applied at any time for the duration 
of the fishing trip.
    (v) For catcher/processors fishing in an area closed to directed 
fishing for a species or species group and not subject to 
679.20(e)(2)(vi), the maximum retainable amount for that species or 
species group applies at any time for the duration of the fishing trip.
    (vi) For all vessels not listed in subpart F of this section, the 
maximum retainable amount for pollock harvested in the BSAI is 
calculated at the end of each offload and is based on the basis species 
harvested since the previous offload. For purposes of this paragraph, 
offload means the removal of any fish or fish product from the vessel 
that harvested the fish or fish product to any other vessel or to 
shore.
* * * * *
    3. In Sec. 679.27, the table in paragraph (c)(2) and the table in 
paragraph (i) are revised to read as follows:

[[Page 4285]]

Sec. 679.27  Improved Retention/Improved Utilization Program.

* * * * *
    (c) * * *
    (2) * * *

------------------------------------------------------------------------
                                                     YOU MUST RETAIN ON
     IF YOU OWN OR OPERATE A             AND         BOARD UNTIL LAWFUL
                                                          TRANSFER
------------------------------------------------------------------------
(i) Catcher vessel                 (A) Directed     all fish of that
                                    fishing for an   species brought on
                                    IR/IU species    board the vessel.
                                    is open,        all fish of that
                                   (B) Directed      species brought on
                                    fishing for an   board the vessel up
                                    IR/IU species    to the MRA amount
                                    is prohibited,   for that species.
                                   (C) Retention    no fish or product
                                    of an IR/ IU     of that species.
                                    species is
                                    prohibited,
(ii) Catcher/processor             (A) Directed     a primary product
                                    fishing for an   from all fish of
                                    IR/IU species    that species
                                    is open,         brought on board
                                                     the vessel.
                                   (B) Directed     a primary product
                                    fishing for an   from all fish of
                                    IR/IU species    that species
                                    is prohibited,   brought on board
                                                     the vessel up to
                                                     the point that the
                                                     round-weight
                                                     equivalent of
                                                     primary products on
                                                     board equals the
                                                     MRA amount for that
                                                     species, except
                                                     when exceeded as
                                                     provided for in
                                                     679.20 (e)(2)(vi).
                                   (C) Retention    no fish or product
                                    of an IR/ IU     of that species.
                                    species is
                                    prohibited,
(iii) Mothership                   (A) Directed     a primary product
                                    fishing for an   from all fish of
                                    IR/IU species    that species
                                    is open,         brought on board
                                                     the vessel.
                                   (B) Directed     a primary product
                                    fishing for an   from all fish of
                                    IR/IU species    that species
                                    is prohibited,   brought on board
                                                     the vessel up to
                                                     the point that the
                                                     round-weight
                                                     equivalent of
                                                     primary products on
                                                     board equals the
                                                     MRA amount for that
                                                     species
                                   (C) Retention    no fish or product
                                    of an IR/ IU     of that species.
                                    species is
                                    prohibited,
------------------------------------------------------------------------

* * * * *
    (i) * * *

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

[FR Doc. 04-1810 Filed 1-28-04; 8:45 am]
BILLING CODE 3510-22-S