[Federal Register Volume 73, Number 48 (Tuesday, March 11, 2008)]
[Rules and Regulations]
[Pages 12898-12900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4810]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070816465-8008-02]
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: Final rule.

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SUMMARY: NMFS issues a final rule 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 costs associated with 
implementation and enforcement, the relatively small number of vessels 
covered 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: Effective April 10, 2008.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action are available on the Alaska Region Web site at http://www.fakr.noaa.gov. Printed copies can be obtained from the Alaska 
Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian.

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 Management Area 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. 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 and regulations at 50 CFR part 
679. Among these measures are prohibited species catch (PSC) limits 
that 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 Gulf of Alaska (GOA) FMP authorizes 
regulations to reduce halibut bycatch rates in fisheries subject to 
halibut PSC limits to increase the opportunity to fish groundfish total 
allowable catches (TACs) before established PSC limits are reached.
    Section 3.6.4 of the Bering Sea and Aleutian Island (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 incentive 
programs to reduce the bycatch of red king crab, as well as halibut.

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 operators whose incidental catch rates exceed specified 
standards. Under the program, the Alaska Regional

[[Page 12899]]

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 
exceed the published bycatch rate standards are subject to prosecution. 
The program became effective in mid-1991.
    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. Anecdotal evidence from 
knowledgeable persons in the Observer Program and NOAA Enforcement 
suggests that the incidence of these activities may be high. Pre-
sorting may affect the accuracy of observer reports of halibut and red 
king crab bycatch.
    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.
    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 additional 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, its potential to absorb 
resources that could be utilized by other, important management and 
enforcement functions, and the incentive created to pre-sort bycatch, 
as well as 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. 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 Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (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.
    The proposed rule for the repeal of the VIP regulations was 
published in the Federal Register on November 30, 2007 (72 FR 67692). 
The public comment period ended on December 31, 2007. No comments were 
received.

Final Regulatory Changes

    This action repeals 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 action does not modify the BSAI and GOA FMPs, which contain 
language authorizing the Council 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 final rule would affect this authority, and 
the Alaska Region will continue to publish these bycatch rates on its 
Web site.

Changes from Proposed Rule

    This rule does not change the authority citation for 50 CFR part 
679. The proposed rule inadvertently said that the authority citation 
was revised, although it did not identify any revisions. In the final 
rule, the phrase ``is revised'' has been replaced with the words 
``continues to read.''

Classification

    The Administrator, Alaska Region, NMFS, determined that this final 
rule is necessary for the conservation and management of the groundfish 
fisheries, 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.
    NMFS prepared a FRFA as required by section 604 of the Regulatory 
Flexibility Act. The FRFA describes the economic impact this final 
rule, if adopted, would have on small entities. A copy of the FRFA 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.
    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to 
accompany the proposed rule. The proposed rule described the IRFA and 
explained to the public how to obtain a copy. No comments were received 
on the IRFA or the economic effects of the proposed rule.
    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 Small 
Business Administration (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 
final 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 small entities in the GOA, so the most recent 
(2005) estimate of 81 vessels was used for the analysis. This estimate 
is likely an overestimate of the number of small entities actually 
directly regulated by this action since it does not account for 
affiliations among entities. Data necessary to fully assess such 
linkages are not currently available.
    The BSAI has a larger number of trawl vessels that are considered 
small entities than the GOA. In 2005, 99 catcher vessels and 2 catcher/
processor vessels reported gross annual receipts of

[[Page 12900]]

$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 final alternatives may directly regulate, on 
average, 113 trawl vessels that are considered small entities. This 
estimate is likely an overestimate of the number of small entities 
actually directly regulated by this action, since it does not account 
for affiliations among entities. As is the case for the GOA, data 
necessary to fully assess such linkages are not currently available.
    Two alternatives to the preferred one 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. The 
analysis of Alternatives 1 and 2 is the same, except that Alternative 2 
has somewhat lower administrative costs because PSC rates are not 
published as often. Alternative 3, which would repeal the VIP 
provisions of regulation, was chosen as the final 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 exist among both vessels greater than or 
equal to 125 feet length overall (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.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ''small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules.
    The preamble to this final rule serves as the small entity 
compliance guide. This action does not require any 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 Web site: http://www.fakr.noaa.gov.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 6, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 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.; 3631 et seq.; 
Pub. L. 108-447.


Sec.  679.7  [Amended]

0
2. In Sec.  679.7, remove and reserve paragraph (a)(5).


Sec.  679.21  [Amended]

0
3. In Sec.  679.21, remove and reserve paragraph (f).
[FR Doc. E8-4810 Filed 3-10-08; 8:45 am]
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