[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Rules and Regulations]
[Pages 32901-32904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13198]



[[Page 32901]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 040105003-4154-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule 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 use incidentally 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: Effective on July 14, 2004.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this regulatory action may be obtained from the Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.

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 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 implemented by 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 
pollock MRA revision.

Maximum Retainable Amounts

    Regulations at 50 CFR 679.20(e) establish rules for calculating and 
implementing MRAs for groundfish species or species groups that are 
closed to directed fishing. The MRA 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 part 679 lists retainable 
percentages for BSAI groundfish species. Amounts that are caught in 
excess of the MRA must be discarded. Regulations limit vessels to MRAs 
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 and discard the rest.
    This action adds regulations at Sec.  679.20(e)(3)(iii) to make the 
MRA for pollock caught by non-AFA eligible vessels in the BSAI 
management area enforceable at the time of offload. This 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 is enforced at the time of offload 
rather than at any time during a fishing trip. Under these regulations, 
vessels will 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 
specified 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, 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 or below the appropriate MRA at the time of offload, the 
vessel operator would be in compliance.
    In addition to the pollock MRA enforcement period adjustment, this 
action clarifies MRA requirements for catcher vessels at Sec.  
679.20(e)(3)(i). Regulations at Sec.  679.20(e) did 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. Catcher vessels may fish 
within more than one statistical reporting area during the same fishing 
trip. This action clarifies that the lowest MRA for any of the areas 
where fish are harvested during a fishing trip applies for the duration 
of the fishing trip. These changes apply to catcher vessels fishing in 
the Gulf of Alaska (GOA) and the BSAI and reflect the existing 
enforcement protocol. MRA requirements for catcher processors at Sec.  
679.20(e)(3) remain unchanged except to change the BSAI pollock MRA 
accounting period from anytime during a fishing trip to the time of 
offload.

Increased Retention (IR)/Increased Utilization IU)

    The following changes to the IR/IU regulations apply to vessels 
fishing in the GOA and the BSAI:
    Regulations at Sec.  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 for 
consistency with the definition of bycatch in the Magnuson-Stevens Act. 
The regulatory text in these paragraphs is amended to reflect current 
language and to provide consistency with other regulatory text.
    Regulations at Sec.  679.27(c)(2)(ii)(B) require vessels to retain 
IR/IU species up to the MRA for that species and are enforced at any 
time during a fishing trip. This action provides an exception in these 
regulations for pollock caught

[[Page 32902]]

by non-AFA eligible vessels in the BSAI.
    Further background on the development of the regulatory amendments 
contained in this final rule is available in the proposed rule that was 
published January 29, 2004 (69 FR 4281) for a 30-day public review and 
comment period that ended March 1, 2004. One letter containing 3 
comments was received during the comment period.

Response to Comments

    Comment 1: The proposed regulation may create an unintended 
incentive for non-AFA vessels to increase the overall amount of pollock 
caught incidentally when directed fishing for other non-pollock species 
in the BSAI. The Council specifically addressed these concerns and 
noted that the non-AFA fleet should not increase their historic levels 
of incidental pollock catch. Further, the amount of pollock caught by 
non-AFA vessels should be compared against these historic levels during 
the annual groundfish harvest specification process.
    Response: By adjusting the MRA enforcement period for pollock 
caught in the BSAI by non-AFA vessels from anytime during a fishing 
trip to enforcement at the time of offload, the Council intended to 
increase the retention of pollock by these vessels without increasing 
their overall catch of pollock. NMFS fisheries managers currently 
consider historic and recent incidental catch levels during the total 
allowable catch (TAC) specification process and will continue to 
provide this information to the Council annually.
    Comment 2: Discussion in the proposed rule about the Incidental 
Catch Allowance (ICA) for pollock harvested by non-AFA vessels seems to 
imply that the purpose of the proposed rule would be achieved if the 
non-AFA fleet does not exceed the ICA for pollock. The ICA is not an 
appropriate reference point for determining whether pollock harvested 
by non-AFA vessels has exceeded historic levels because it is a 
conservative, precautionary estimate of incidental pollock catch in all 
non-target pollock fisheries, much of which is rolled back to the 
pollock fishery during a fishing year.
    Response: The goal of this action is to reduce regulatory discards 
of pollock by non-AFA vessels without increasing the overall amount of 
pollock caught by these vessels. Members of the AFA fleet expressed 
concern during the Council process over non-AFA vessels exceeding 
historic levels of incidental pollock catch. These concerns were 
analyzed in the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (see ADDRESSES) prepared for 
the proposed rule and further discussion was provided in the preamble 
to the proposed rule. While a discussion of the ICA is provided in the 
proposed rule, this discussion was not intended to suggest that the 
goal of this action would be achieved if the non-AFA fleet does not 
exceed the ICA for pollock. The ICA is not an allocation or quota to 
any particular group or sector of the BSAI groundfish fleet. Incidental 
catch estimates that form the basis of annual ICAs are conservatively 
large to ensure that overall harvest remains within the TAC. NMFS 
annually provides information about historical catch to the Council to 
guide the ICA specification and will continue to make this information 
available to the Council and interested public. The amount of pollock 
caught by non-AFA eligible vessels will continue to be well documented. 
Should pollock incidental catch rates or amounts increase in a manner 
that would require an increase in the ICA, 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.
    Comment 3: To the extent that pollock ICA levels are higher than 
necessary to support incidental catch rates by non-AFA vessels, NMFS 
routinely makes inseason adjustments to the ICA and reallocates any 
projected unused pollock to the AFA fleet. These reallocations should 
not be considered as historical catch of the non-AFA fleet.
    Response: Reallocations of pollock from the ICA to the directed 
fishery have occurred every year since 1999 and range from 2,000 mt in 
1999 to 12,000 mt in 2001. NMFS managers use actual historical and 
recent catch amounts to specify future ICA amounts. As a result, the 
ICA can change annually.

Changes From Proposed Rule

    There are two changes from the proposed rule to the final rule:
    First, regulations at Sec.  679.20(e)(2)(i), (e)(2)(ii), and 
(e)(2)(iii) describe how to calculate the MRA for a specific incidental 
catch species. Proposed regulations at Sec.  679.20(e)(2)(iv), 
(e)(2)(v) and (e)(2)(vi) describe the applicability of MRA regulations. 
This final action redesignates Sec.  679.20(e)(2)(iv), (e)(2)(v) and 
(e)(2)(vi), as published in the proposed rule, to Sec.  
679.20(e)(3)(i), (e)(3)(ii) and (e)(3)(iii), respectively, and adds the 
title of ``Application'' for these paragraphs. This change from the 
proposed rule is intended to enhance clarity of these regulations for 
the public. The cross-reference at Sec.  679.27(d)(1)(iii)(B) is 
changed to reflect this redesignation.
    Second, the text, ``and not subject to Sec.  679.20(e)(2)(vi)'' at 
Sec.  679.20(e)(2)(v) and ``except when exceeded as provided for in 
Sec.  679.20(e)(2)(vi)'' at Sec.  679.27(c)(2)(ii) is removed in the 
final rule. The revision to the MRA enforcement period for pollock 
harvested by non-AFA vessels in the BSAI applies to all vessel types. 
In the proposed rule, this text only was found in paragraphs which 
apply to catcher/processors. NMFS recognizes that this could cause 
confusion and has removed the text from the final action. Regulations 
at Sec.  679.20(d)(1)(iii)(B) continue to clarify MRA applicability 
requirements for all vessels.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA. The FRFA incorporates the Initial Regulatory 
Flexibility Analysis (IRFA) and a summary of the analyses completed to 
support the action. A copy of this analysis is available from NMFS (see 
ADDRESSES). Section 604(a) of the Regulatory Flexibility Act (RFA) 
identifies the elements that should be in the FRFA and are summarized 
below:

Need for, and Objectives of, the Rule

    The need for, and objectives of, this action are described above in 
the preamble and are not repeated here.

Significant Issues Raised by the Public Comments

    The proposed rule was published on January 29, 2004 (69 FR 4281). 
An IRFA was prepared for the proposed rule, and described in the 
classifications section of the preamble to the rule. The public comment 
period ended on March 1, 2004. No comments were received on the IRFA or 
concerning the economic impact of the rule.

Number of Small Entities to Which the Rule will Apply

    The change in the enforcement period for the pollock MRA will apply 
to all non-AFA vessels that catch BSAI pollock as an incidental 
species, regardless of vessel size, gear type or target fishery. Non-
AFA trawl catcher processors (head-and-gut sector) incidentally catch 
significant amounts of pollock in other groundfish fisheries. Other 
non-AFA vessels do not catch significant amounts of pollock and are 
therefore seldom affected by the MRA

[[Page 32903]]

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 FRFA 
treated these vessels as four independent companies.
    Analysis of the 3-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 be 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 (38.1 meters).

Steps Taken to Minimize the Significant Economic Impact on Small 
Entities

    The preferred alternative is not expected to have a significant 
negative impact on individual vessel gross receipts. Therefore, this 
final rule is not expected to have a significant negative impact on 
small entities. The preferred alternative changes the enforcement 
interval of the MRA to an offload-to-offload basis. This alternative 
meets the goal of the Council of reducing discards of pollock by non-
AFA vessels without increasing the overall amount of pollock harvested 
by these vessels. The preferred alternative also provides regulatory 
relief to any directly regulated small entity to which the rule applies 
by increasing operational flexibility, improving resource utilization, 
and reducing the risk of an inadvertent violation of MRA and IR/IU 
pollock retention standards. This action is not expected to create any 
adverse impacts for directly regulated entities, small or large. 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.
    Options for different enforcement periods for adjusting the MRA for 
pollock harvested by non-AFA vessels in the BSAI and for increasing the 
MRA percentage were considered by the Council, but were eliminated from 
detailed analysis due to potential difficulties in enforcing these 
options and inconsistencies with the problem statement. The status quo 
is the alternative to the preferred action. 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.

Small Entity Compliance Guide

    This action changes regulations at Sec.  679.20 and Sec.  679.27 to 
make the MRA for pollock caught by non-AFA eligible vessels in the BSAI 
management area enforceable at the time of offload. This action does 
not require additional compliance from small entities that is not 
described in the preamble. Copies of this final rule are available from 
NMFS (see ADDRESSES) and at the following website: http://www.fakr.noaa.gov.

Reporting, Recordkeeping, and Other Compliance Requirements

    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities. The FRFA 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: June 4, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 679 is amended to 
read 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: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.

0
2. In Sec.  679.20, paragraph (e)(2)(iv) is removed, paragraph 
(d)(1)(iii)(B) is revised, and paragraph (e)(3) is added to read as 
follows:


Sec.  679.20  General limitations.

* * * * *
    (d) * * *
    (1) * * *
    (iii) * * *
    (B) Retention of incidental species. Except as described in Sec.  
679.20(e)(3)(iii), 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) * * *
    (3) Application.
    (i) 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 and to all areas 
for the duration of the fishing trip.
    (ii) For catcher/processors fishing in an area closed to directed 
fishing for a species or species group, the maximum retainable amount 
for that species or species group applies at any time for the duration 
of the fishing trip.
    (iii) 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.
* * * * *

0
3. In Sec.  679.27, the table in paragraph (c)(2), and the table in (i) 
are revised to read as follows:


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 IR/  species brought
                                   IU species is       on board the
                                   open.               vessel.
                                  (B) Directed        all fish of that
                                   fishing for an IR/  species brought
                                   IU species is       on board the
                                   prohibited.         vessel up to the
                                                       MRA for that
                                                       species.
                                  (C) Retention of    no fish of that
                                   an IR/ IU species   species.
                                   is prohibited.
(ii) Catcher/processor            (A) Directed        a primary product
                                   fishing for an IR/  from all fish of
                                   IU species is       that species
                                   open.               brought on board
                                                       the vessel.

[[Page 32904]]

 
                                  (B) Directed        a primary product
                                   fishing for an IR/  from all fish of
                                   IU species is       that species
                                   prohibited.         brought on board
                                                       the vessel up to
                                                       the point that
                                                       the round-weight
                                                       equivalent of
                                                       primary products
                                                       on board equals
                                                       the MRA for that
                                                       species.
                                  (C) Retention of    no fish or product
                                   an IR/IU species    of that species.
                                   is prohibited.
(iii) Mothership                  (A) Directed        a primary product
                                   fishing for an IR/  from all fish of
                                   IU species is       that species
                                   open.               brought on board
                                                       the vessel
                                  (B) Directed        a primary product
                                   fishing for an IR/  from all fish of
                                   IU species is       that species
                                   prohibited.         brought on board
                                                       the vessel up to
                                                       the point that
                                                       the round-weight
                                                       equivalent of
                                                       primary products
                                                       on board equals
                                                       the MRA for that
                                                       species.
                                  (C) Retention of    no fish or product
                                   an IR/IU species    of that 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 species   equal or exceed 15 percent
 is open,                                    of the round-weight catch
                                             or round-weight delivery of
                                             that species during the
                                             fishing trip.
(2) directed fishing for an IR/IU species   equal or exceed 15 percent
 is prohibited,                              of the round-weight catch
                                             or round-weight delivery of
                                             that species during the
                                             fishing trip or 15 percent
                                             of the MRA for that
                                             species, whichever is
                                             lower.
(3) retention of an IR/IU species is        equal zero.
 prohibited,
------------------------------------------------------------------------

[FR Doc. 04-13198 Filed 6-10-04; 8:45 am]
BILLING CODE 3510-22-S