[Federal Register Volume 72, Number 230 (Friday, November 30, 2007)]
[Proposed Rules]
[Pages 67692-67695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23257]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070816465-7466-01]
RIN 0648-AV96


Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited 
Species Bycatch Management

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

ACTION: Proposed rule.

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SUMMARY: NMFS proposes to repeal regulations providing for a groundfish 
vessel incentive program (VIP) that was designed to reduce the rate at 
which Pacific halibut and red king crab are taken as incidental catch 
in Alaska groundfish trawl fisheries. The VIP has not performed as 
intended because of the cost associated with enforcement, the 
relatively small number of vessels impacted by the regulation, and the 
implementation of more effective bycatch reduction programs. This 
action is necessary to reduce a regulatory burden on the industry and 
to reduce the administrative costs necessary to support a program no 
longer considered an effective means to reduce bycatch rates.

DATES: Written comments must be received by December 31, 2007.

ADDRESSES: You may submit comments, identified by 0648-AV96, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov;
     Mail: Sue Salveson, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, 
Juneau, AK 99802; Attn: Ellen Sebastian, Records Officer;
     Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK; 
or
     Fax: 907-586-7557, Attention: Sue Salveson.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action 
may be obtained from the addresses stated above or from the Alaska 
Region NMFS website at http://www.fakr.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the U.S. groundfish fisheries of the exclusive 
economic zone off Alaska under the Fishery Management Plan for 
Groundfish of the Bering Sea and Aleutian Islands and the Fishery 
Management Plan for Groundfish of the Gulf of Alaska (FMPs). The North 
Pacific Fishery Management Council (Council) prepared the FMPs pursuant 
to the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 
CFR part 679. General regulations that pertain to U.S. fisheries appear 
at subpart H of 50 CFR part 600.
    Fisheries off Alaska targeting groundfish incidentally catch other 
species as well. Some of these non-groundfish species are themselves 
the objects of valuable targeted fisheries and retention of these 
species is prohibited in the groundfish fishery. These prohibited 
species include Pacific halibut, Chinook and ``Other'' salmon, several 
crab species, and herring. Measures to restrict the catch of these 
species have been incorporated into the FMPs for the GOA and the BSAI 
and into regulation. Among these measures are prohibited species catch 
(PSC) limits. PSC limits restrict the amount of a prohibited species 
that may be taken incidentally in a groundfish fishery. Groundfish 
fisheries are routinely closed in all or part of a management area when 
a PSC limit is reached. These closures are expensive for industry 
because they mean that valuable groundfish are left unharvested.
    Section 3.6.4 of the GOA FMP authorizes regulations to reduce 
halibut bycatch rates in fisheries subject to halibut PSC limits to 
increase the opportunity to fish groundfish TACs before established PSC 
limits are reached. Specifically, this provision is intended to 
encourage individual vessels to maintain average bycatch

[[Page 67693]]

rates within acceptable performance standards and discourage fishing 
practices that result in excessively high bycatch.
    Section 3.6.4 of the BSAI FMP allows for implementation of 
regulatory measures to provide incentives to individual vessels to 
reduce bycatch rates of prohibited species for which PSC limits are 
established. While the GOA provisions are limited to halibut, the BSAI 
provisions authorize the creation of, and have been used to create, 
incentive programs for red king crab, as well as halibut. This 
provision has the same purpose as the corresponding provision in the 
GOA FMP, which is to increase the opportunity to harvest groundfish 
TACs.

Vessel Incentive Program

    Regulations at 50 CFR 679.21(f) implement a vessel incentive 
program (VIP) under the authority of the FMPs. The program creates 
incentives for individual groundfish trawl operators to reduce their 
incidental catch rates of halibut and red king crab by imposing 
penalties on operations whose incidental catch rates exceed specified 
standards. Under the program, the Alaska Regional Administrator is 
required to publish fishery-specific bycatch rate standards for halibut 
in the GOA and BSAI, and red king crab in the BSAI two times a year. 
Observer data on the catch composition of harvests in subject fisheries 
is statistically analyzed. Vessels that appear to have exceeded the 
published bycatch rate standards are subject to prosecution. The 
program became effective in mid-1991.
    Currently, vessels are subject to the VIP requirement if the 
groundfish catch of the vessel is observed on board the vessel, or on 
board a mothership that receives unsorted codends from the vessel, at 
any time during a weekly reporting period and the vessel is assigned to 
one of six trawl fisheries. As a practical matter, only groundfish 
trawl vessels carrying observers are subject to the VIP.
    The trawl fisheries defined in the regulations that are subject to 
the VIP requirement include two GOA fisheries (GOA midwater pollock and 
GOA other trawl) and four BSAI fisheries (BSAI midwater pollock, BSAI 
yellowfin sole, BSAI bottom pollock, and BSAI other trawl). A vessel is 
assigned a fishery group based on the species composition in observed 
samples of its groundfish catch.
    Regulations specify that a vessel's PSC rate during any fishing 
month may not exceed the bycatch rate standard specified by NMFS. 
Regulations require that bycatch rate standards for each fishery be 
published twice a year in the Federal Register. These standards are 
established for Pacific halibut in the GOA and BSAI trawl fisheries; 
the non-pollock trawl fisheries also are held to a red king crab 
bycatch rate standard in Zone 1 of the BSAI. A vessel is non-compliant 
with a bycatch rate standard if the vessel's bycatch rate for a fishing 
month exceeds the bycatch rate standard established for that fishery.
    Calculation of VIP bycatch rate standards and monitoring of PSC and 
target catch is dependent on data collected at-sea by observers. 
Observers sample hauls and gather information on the date and target 
species harvested, area of catch, total round weight of groundfish 
catch, total round weight of halibut PSC, and number of red king crab 
PSC. The Alaska Fisheries Science Center has developed observer 
sampling protocols, and algorithms for statistical analysis of bycatch 
information. The information is used to make statistical inferences 
about PSC rates for a vessel in a given month for a specific target 
species.
    The VIP regulations require publication of the bycatch rate 
standards in the Federal Register for 30 days before they take effect, 
unless NMFS finds for good cause that such notification and public 
comment are impracticable, unnecessary, or contrary to the public 
interest. Bycatch rate standards are season and fishery specific. The 
Alaska Regional Administrator is required to publish bycatch rate 
standards for the first half of the year (before January 1) and for the 
second half of the year (before July 1). Although standards are 
required to be published bi-annually, the Regional Administrator may 
adjust bycatch rate standards as frequently as he or she considers 
appropriate. VIP bycatch rate standards, however, have not been 
published since the first half of 2003.
    Regulations governing the determination of halibut and red king 
crab bycatch rates for individual vessels are at 50 CFR 679.21(f)(7) 
and (f)(8). Observers sample hauls and collect information about the 
Federal reporting area of harvest, round weight of groundfish, round 
weight of halibut, and number of red king crab. For VIP PSC rate 
calculation, observers randomly predetermine the hauls to sample, and 
randomly sample a minimum of 100 kg of fish from throughout the haul. 
Observers report to NMFS at least weekly with the information from 
sampled hauls, and allow the vessel operator to examine the data.
    At the end of a month in which an observer has sampled at least 50 
percent of the vessel's total hauls (retrieved while an observer was 
onboard), the Regional Administrator calculates the vessel's PSC rate 
for halibut and red king crab based on observer data for each of the 
fisheries to which the vessel was assigned based on the vessel's catch 
composition during the month. The PSC rates reflect the weight of 
groundfish and halibut and the number of red king crab that were 
actually sampled. No extrapolations are made to the weight and numbers 
in sampled hauls, or the weight and numbers harvested in observed and 
unobserved hauls during the month.
    Enforcement actions may be taken if a vessel's bycatch rate for a 
fishing month exceeds the bycatch rate standard established for that 
fishery.
    The VIP imposes potential costs on fishermen with high observed 
prohibited species bycatch rates. This has created an incentive for 
fishermen to reduce these observed rates. They can do this by changing 
the patterns of their fishing behavior. They can also do this by 
manipulating the observer reported rates. For example, fishing 
operations may arrange to pre-sort their catches, to eliminate some or 
all of the prohibited species before these reach the observer station. 
These are illegal actions, and their incidence is unknown. However, it 
is known that the VIP increases the incentives for these actions. 
Anecdotal evidence from knowledgeable persons in the Observer Program 
and NOAA Enforcement suggests that the incidence of these activities 
may be serious. Pre-sorting may affect the accuracy of observer reports 
of halibut and red king crab bycatch and bycatch rates.
    Effective enforcement of the VIP imposes significant costs on the 
observer program and NMFS. Resources for the management of the program 
and enforcement of the rule have to be taken from other high priority 
management and enforcement responsibilities. It also is not clear from 
experience with the program that it has had, or will have, a 
significant deterrent effect or has led to the harvest of significant 
additional amounts of target groundfish. Part of the problem may be the 
limited coverage of the program. As a practical matter, sufficient 
observations of hauls usually only occur on vessels with 100 percent 
observer coverage. This has a tendency to limit the program to trawl 
vessels equal to or greater than 125 feet length overall (LOA); these 
are the trawlers that are required to carry that level of coverage.
    The authorizing provisions in both FMPs make clear that the purpose 
of a VIP is to enable industry to harvest larger proportions of 
groundfish TACs.

[[Page 67694]]

Repeal of the VIP will not affect managers' ability to protect the 
sustainability of halibut and red king crab stocks because the 
groundfish fisheries will continue to be managed to maintain bycatch 
within the PSC limits. Repeal of the VIP also will not affect managers' 
ability to protect the sustainability of groundfish stocks by 
maintaining harvests within TAC and Acceptable Biological Catch (ABC) 
limits.
    Furthermore, the establishment of fishery cooperatives and the 
stringent catch monitoring provisions implemented by NMFS to monitor 
cooperative-specific allocations of groundfish and prohibited species, 
including halibut and red king crab, are other means to reduce bycatch. 
Cooperative members receive a joint allocation of PSC, and this creates 
incentives and capabilities for cooperatives to control individual 
operation PSC bycatch rates to maximize the value of the cooperative's 
PSC allocation.
    In June 2003 the Council initiated an amendment to repeal the VIP 
given concerns about its effectiveness, concerns over its potential to 
absorb resources that could be utilized by other, important management 
and enforcement functions, concerns about the incentive created for 
pre-sorting of bycatch, and developments in other bycatch reduction 
programs that have occurred since 1991. In October 2003, the Council 
reviewed a NMFS discussion paper and made a preliminary identification 
of alternatives for analysis. The Council requested that a discussion 
of alternatives for analysis be placed on the agenda in December 2003 
for additional public testimony. In December 2003 the Council 
reiterated its approval of the alternatives it had adopted in October 
and scheduled initial review of the draft for its April 2004 meeting.
    In October 2006 the Council initially reviewed the EA/RIR/IRFA and 
(a) identified repeal of the VIP regulations, without modification of 
authorizing language in the FMPs, as its preferred alternative; (b) 
approved release of the EA/RIR/IRFA for public review; and (c) 
scheduled final action for its December 2006 meeting in Anchorage, 
Alaska. In December 2006 the Council took final action, adopting the 
preferred alternative it had identified in October 2006.

Proposed Regulatory Changes

    This action would repeal 50 CFR 679.21(f), which imposes the 
requirement for compliance with the VIP and describes procedures for 
assignment of vessels to fisheries, notification of bycatch rate 
standards, analysis of the factors on which bycatch rate standards are 
to be based, public comment, publication of notification in the Federal 
Register, use of observer data to calculate rates, calculation of 
individual vessel rates, and determining whether a vessel is in 
compliance with bycatch rate standards.
    This action also would repeal 50 CFR 679.7(a)(5) which specifically 
prohibits vessels from exceeding a bycatch rate standard specified 
under 50 CFR 679.21(f).
    This proposed rule would not modify the BSAI and GOA FMPs, which 
contain language permitting the Council to adopt a VIP. Therefore, the 
Council would retain the authority to develop a new VIP if it chooses.
    Regulations at 50 CFR 679.50(k) authorize NMFS Alaska Region to 
publish individual vessel bycatch rates for specified prohibited 
species. Nothing in this proposed action would affect this authority, 
and the Alaska Region will continue to publish these bycatch rates on 
its website.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the FMPs, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A copy of the IRFA is 
available from NMFS (see ADDRESSES). A description of the action, why 
it is being considered, and the legal basis for this action are 
contained at the beginning of the preamble and in the SUMMARY section 
of the preamble. A summary of the remainder of the analysis follows.
    In 2005 a total of 78 catcher vessels and 3 catcher/processor 
vessels reported gross annual receipts of $4.0 million or less from 
fishing groundfish and other species using trawl gear in the GOA, and 
can therefore be characterized as small entities under the SBA size 
standards. Between 2002 and 2005, the total number of trawl vessels 
generating $4.0 million or less in revenue has ranged from a low of 81 
in 2004 and 2005, to a high of 112 in 2002. Average gross revenue (from 
all fishing sources in Alaska) generated by these vessels was 
approximately $840,000 in 2005, which was an increase from $730,000 in 
2004 and $590,000 in 2002. Thus, the proposed alternatives may directly 
regulate between 81 and 112 small entities in the GOA. There has been a 
general decline in the number of vessels that qualify as a small entity 
in the GOA, so the most recent (2005) estimate of 81 vessels was used 
for the analysis. This estimate is almost certainly an overestimate of 
the number of small entities actually directly regulated by this action 
since it does not take account of affiliations among the entities. Data 
necessary to fully assess such linkages are not currently available.
    The BSAI management area has a larger number of trawl vessels 
considered small entities than the GOA. In 2005, 99 catcher vessels and 
2 catcher/processor vessels reported gross annual receipts of $4.0 
million or less, from all their fishery production off Alaska. Between 
2002 and 2005, the total number of vessels categorized as small 
entities in these BSAI fisheries has ranged from a low of 101 in 2005 
to a high of 123 in 2002. Between 2002 and 2003, the average gross 
revenue (from all Alaskan fishing sources) generated by these vessels 
has ranged from a low of $1.20 million in 2003 to a high of $1.60 
million in 2005. Thus, the proposed alternatives may directly regulate, 
on average, 113 trawl vessels that are considered small entities. This 
estimate is almost certainly an overestimate of the number of small 
entities actually directly regulated by this action, since it does not 
take account of affiliations among the entities. As is the case for the 
GOA, data necessary to fully assess such linkages are not currently 
available.
    Two alternatives to the proposed action were examined. Alternative 
1 was the ``No Action'' alternative. Under this alternative the VIP 
would have remained in place. This alternative would have involved a 
renewed commitment to investigating violations, and prosecuting 
violators. As noted earlier, the Council and NMFS have had concerns 
about the effectiveness of this program and its potential to mislead 
estimates of PSC incidental catches. Moreover, cooperatives offer new 
methods to control PSC bycatch rates. Alternative 2 would retain the 
program, but would reduce the frequency with which PSC rates are 
published. This alternative would reduce the administrative costs of 
Alternative 1, but would retain its most serious consequences. 
Alternative 3, which would repeal the VIP provisions of regulation, was 
chosen as the proposed

[[Page 67695]]

alternative because it was the only alternative that meets the 
objectives of this action. Alternatives 1 and 2 would renew the VIP. If 
the VIP were effective, it could lead to reduced bycatch rates and the 
harvest of larger proportions of TACs in certain trawl fisheries. 
However, as noted, there are important concerns about the program's 
potential for successful reduction in bycatch rates. As a practical 
matter, 100 percent observer coverage is required to make a case 
against a trawl operator for exceeding the PSC rate. This level of 
observer coverage is available only on trawl vessels greater than or 
equal to 125 feet LOA. Enforcement efforts would be principally 
directed against this class of vessels. Small entities, as defined by 
the Small Business Administration (SBA), could occur among both vessels 
greater than or equal to 125 feet LOA, and less than or equal to 125 
feet LOA. Alternative 3 would best meet the objective of this action 
and avoid the potential costs that might be imposed on directly 
regulated small entities by enforcement activities.
    This regulation would not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The 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: November 26, 2007.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 679 as follows:

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

    1. The authority citation for 50 CFR part 679 is revised to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108-447.


Sec.  679.7  [Amended]

    2. In Sec.  679.7, remove and reserve paragraph (a)(5).


Sec.  679.21  [Amended]

    3. In Sec.  679.21, remove and reserve paragraph (f).
[FR Doc. E7-23257 Filed 11-29-07; 8:45 am]
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