[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Proposed Rules]
[Pages 62241-62245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24923]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080310410-8415-01]
RIN 0648-AW54


Fisheries of the Exclusive Economic Zone Off Alaska; Revisions to 
the Pollock Trip Limit Regulations in the Gulf of Alaska

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes to revise pollock trip limit regulations to 
prohibit a catcher vessel from landing more than 300,000 lb (136 mt) of 
unprocessed pollock during a calendar day. NMFS also proposes to 
prohibit a catcher vessel from landing a cumulative amount of 
unprocessed pollock from any Gulf of Alaska (GOA) reporting area that 
exceeds 300,000 lb multiplied by the number of calendar days the 
pollock fishery is open to directed fishing in a season. The objective 
of this proposed rule is to prevent catcher vessels from circumventing 
the intent of current trip limit regulations when making deliveries of 
pollock. Amending the current trip limit regulation to limit legal 
opportunities for a vessel to exceed 300,000 lb of pollock caught in a 
day, would continue to disperse catches of pollock in a manner that is 
consistent with the intent of Steller sea lion protection measures in 
the GOA.

DATES: Written comments must be received by November 19, 2008.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AW54,'' by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
     Mail: P. O. Box 21668, Juneau, AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    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 (e.g., name, address) 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 (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Copies of the Categorical Exclusion (CE) and the Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for 
this action are available by mail from NMFS, Alaska Region, P.O. Box 
21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; 
in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, 
Juneau, AK; or via the Internet at the NMFS Alaska Region website at 
http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442.

SUPPLEMENTARY INFORMATION: 
    The North Pacific Fishery Management Council (Council) prepared the 
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP), 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. 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. 
NMFS manages the Gulf of Alaska (GOA) groundfish fisheries under the 
FMP. The FMP also authorizes the use of fishery

[[Page 62242]]

management measures to protect marine mammals, particularly for species 
that have been listed as endangered or threatened under the Endangered 
Species Act (ESA).
    Regulations that establish current trip limits at Sec.  
679.7(b)(2), were implemented over several years in response to ESA 
consultations on Steller sea lions. The 1999 Steller sea lion 
protection measures, implemented by emergency interim rule (64 FR 3437, 
January 22, 1999), set trip limits for the Western and Central GOA. In 
2001, NMFS issued a Biological Opinion (BiOp) that determined the 
groundfish fisheries managed under the protection measures were 
unlikely to jeopardize the continued existence of the western distinct 
population segment of Steller sea lions or adversely modify or destroy 
designated critical habitat. After the BiOp was issued, additional 
rulemaking implemented the current pollock trip limits across the 
entire GOA (67 FR 956, January 8, 2002 and 68 FR 204, January 2, 2003).
    Pollock trip limits were intended to protect Steller sea lions in 
part by temporally dispersing the pollock fishery in the GOA, thus 
reducing competition for prey species between the fishery and Steller 
sea lions. Trip limits were to accomplish this by decreasing daily 
pollock catches in areas that were in close proximity to foraging 
Steller sea lions.
    Trip limits regulate the amount of a species that may be landed by 
a vessel during a fishing trip. Trip limits often are specific to a 
management, regulatory or reporting area; fishing gear type or programs 
(such as exempted fishing or the Community Development Quota Program); 
and specific intervals of time during a year or season.
    In developing the current trip limits, NMFS analyzed several 
alternative protection measures for temporally dispersing daily catches 
of pollock and concluded that the most effective and least burdensome 
approach was to limit pollock landings for a fishing trip and to set 
the trip limit at 300,000 lb. That amount would allow larger catcher 
vessels to fully utilize available space in a hold, while still 
reducing landings that were frequently exceeding 300,000 lb per day. 
NMFS based the limit on a trip because trawl fishing trips in the GOA 
were typically completed within a calendar day, and enforcement issues 
existed with applying a landing limit based on a daily or weekly 
interval. A daily limit was deemed to be impractical because at the 
time this option was considered in 2002, NMFS did not receive accurate 
data on groundfish catch by each vessel in a sufficient time to 
determine whether a daily catch limit had been reached to prevent 
further fishing on that same day. Catch data was reported by paper fish 
tickets, that could take several days to become available to NMFS. This 
delay also prevented the use of a weekly landing limit. Presently, when 
a landing occurs, it is quickly reported electronically and made 
available to NMFS allowing for a much shorter turn over for enforcement 
of daily landing limits.
    Under the current regulations, pollock trip limits are to be apply 
to any catcher vessel that retains pollock in the GOA at any time 
during a fishing trip. Trawl catcher vessels are the only vessels that 
may fish in the directed pollock fishery and have sufficient catching 
and retention capacity to be affected by GOA pollock trip limits. For 
the purpose of calculating retained catch, a fishing trip is defined at 
Sec.  679.2 as ending at the time that all fish or fish products are 
offloaded. An offload is a partial or complete landing of unprocessed 
catch from a catcher vessel to a processing plant or tender. A vessel 
operator would not be in compliance with current regulations for 
pollock trip limits if the amount of pollock retained onboard a vessel 
exceeded 300,000 lb during a fishing trip between offloads.
    In 2005, the Council reviewed trawl landing data that demonstrated 
current pollock trip limits were not completely effective at 
restricting catches of pollock to 300,000 lb per day. The Council also 
received testimony from industry and a report from Council staff at 
their February 2005 meeting describing how some trawl catcher vessels 
were completing multiple trips in a day, or offloading to tenders to 
increase their daily pollock catch. If a vessel completed two fishing 
trips of 300,000 lb each in a day, or delivered 300,000 lb to a tender 
and landed 300,000 lb in the same a day to a processor, that vessel 
would be complying with regulation, while removing twice as much 
pollock. These practices were inconsistent with the Council's intention 
that only one trip per trawl vessel would be completed in a day, 
limiting the daily catch of pollock per vessel to 300,000 lb. Because 
the current trip limit is based on retention of pollock at any time 
during a fishing trip, the current regulations have allowed vessels to 
catch more than 300,000 lb in a day. Increasing fishing effort from 
these practices in 2005 also led to a 2,000 mt overage of the 5,000 mt 
seasonal pollock quota. The Council did not recommend any changes to 
pollock trip limits in 2005, but requested that industry voluntarily 
restrict catches to 300,000 lb per vessel, per day.
    Between October and December of 2007 the Council again received 
testimony from vessel owners and reviewed updated catch data from NMFS. 
The Council concluded that the current pollock trip limit continued to 
be ineffective in dispersing catch of pollock among various reporting 
areas of the GOA. Representatives from the trawl catcher vessel sector 
reported that voluntary efforts to control pollock catches were not 
effective because vessels in the Western GOA were circumventing the 
intent of the trip limit by making more than one trip per calendar day, 
delivering more than 300,000 lb to a tender in a day, and towing cod 
ends to a tender that exceeded 300,000 lb at the point of landing. 
Catch data prepared by NMFS for the RIR/IRFA for this proposed rule 
confirmed that the trip limit regulation has not been fully effective 
because vessels in the GOA pollock fishery exceeded landings of 300,000 
lb in a day, 241 times from 1999 to 2006.
    In December 2007, the Council recommended adding two new provisions 
to the current GOA trip limit regulation to resolve this problem. The 
first provision would add a daily landing limit at Sec.  
679.7(b)(2)(ii) for pollock by prohibiting a trawl catcher vessel from 
landing more than 300,000 lb of unprocessed pollock during a calendar 
day. The second provision would add a seasonal landing limit at Sec.  
679.7(b)(2)(iii), that would prohibit a trawl catcher vessel from 
landing a cumulative amount of pollock that exceeds 300,000 lb 
multiplied by the number of calendar days that the directed fishery is 
open.
    The daily landing limit would partially close the loophole in 
regulations that has allowed vessel operators to exceed the trip limit. 
The combination of a daily landing limit and a trip limit, however, 
could still allow some vessels to land well in excess of 300,000 lb of 
pollock per day.
    Trawl vessels that transit only a short distance to a processor for 
delivering pollock could exceed a daily landing of 300,000 lb in a 24-
hour season opening, because a single 24-hour season opening overlaps 
with 2 calendar days (a season opening always begins at noon), and 
because groundfish offloads may be extended across one or more calendar 
days. For example, if the pollock season were to open for a 24-hour 
period at 12 noon on Monday (day 1), a vessel could catch 300,000 lb of 
pollock and complete the offload of all catch before midnight on day 1. 
That vessel could begin to fish in the evening of day 1,

[[Page 62243]]

and start its second offload of 300,000 lb on Tuesday morning (day 2). 
Prior to the closing of the 24 hour period at 12 noon on Tuesday (day 
2), the vessel could finish fishing a third trip for pollock, but 
return to port and complete its offload of pollock after 12 midnight on 
Wednesday (day 3). An offload can start on one calendar day, and end on 
a subsequent calendar day. Thus, in a 24-hour season opening with the 
proposed daily landing limit, a total of three calendar days multiplied 
by the daily landing limit of 300,000 lb of pollock could be delivered, 
for a total of 900,000 lb. Furthermore, in a 48-hour season opening, 
the proposed daily landing limit could allow a vessel to offload 4 x 
300,000 lb, or 1,200,000 lb of pollock, and in a 72-hour opening, a 
vessel could offload 5 x 300,000 lb, or a total of 1,500,000 lb.
    The seasonal landing limit would prohibit a vessel operator from 
landing an amount of pollock that exceeds the daily landing limit 
multiplied by the number of calendar days that occur during the time 
period the directed fishery is open. In the case of a 24-hour opening 
that extends across two calendar days (for example, from noon on July 1 
to noon on July 2), the seasonal landing limit combined with the daily 
landing limit and trip limit would allow a vessel to land no more than 
the daily landing limit of 300,000 lb multiplied by two (the number of 
calendar days), for a total of 600,000 lb.
    This proposed action would be consistent with the original intent 
of pollock trip limits to temporally and spatially disperse catches of 
pollock in the GOA. The daily landing limit portion of this proposed 
action would temporally disperse catches of pollock in the GOA by 
prohibiting operators of catcher vessels from exceeding 300,000 lb of 
pollock landed in a calendar day. The seasonal landing limit would 
temporally disperse pollock catches by constraining pollock vessels 
from exceeding an average daily catch of 300,000 lb of pollock over the 
period of a season, in a specific GOA regulatory area.
    The proposed action would also reduce the chance of exceeding the 
pollock total allowable catch (TAC) or a seasonal allocation of the 
pollock TAC. Implementing both a daily and seasonal landing limit to 
prohibit landing daily amounts of pollock in excess of 600,000 lb in a 
24 hour period may also slow down the overall rate of pollock catch in 
a season opening. Particularly in years and reporting areas of high 
pollock abundance, both the daily and seasonal landing limits would 
slow removals from large capacity vessels that have previously landed 
more than 1,000,000 lb per day.
    This action would apply to vessels of all sizes and capacities in 
the GOA. For example, catcher vessels with larger capacity for catching 
and delivering pollock would no longer be able to bypass the original 
intent of pollock trip limits by practices such as delivering cod ends 
to a tender or processor, or making multiple landings per day. The RIR/
IRFA for this action states that the number of times that larger trawl 
catcher vessels over 60 ft length overall (LOA) exceed a daily catch of 
300,000 lb of pollock is consistently greater than small trawl catcher 
vessels (under 60 ft LOA), and the combination of day, trip, and 
seasonal landing limits included in this proposed action are more 
likely to reduce the amount of pollock caught per day for large than 
for small vessels. To compensate for constraining the amount of pollock 
that a catcher vessel may catch in a day, some of the 146 trawl vessels 
in the pollock fishery would require additional trips to catch the 
annual pollock TAC. The vessels that forego the amount of those 
landings in excess of 300,000 lb per day, would still remain available 
to all vessels to catch in additional fishing trips.
    NMFS would not need additional data to calculate or monitor 
compliance for daily or seasonal pollock landing limits. NMFS would use 
landings data entered by each shoreside, mothership or inshore floating 
processor in eLandings at the time a vessel offloads pollock to monitor 
compliance with the trip, daily, and seasonal landing limits. If a 
vessel exceeded the daily pollock landing limit, the amount of the 
overage would be detected by NOAA Office for Law Enforcement during an 
audit of pollock landings recorded in eLandings. Because a landing 
record is recorded at the end of an offload, any amount exceeding 
300,000 lb in a day would be identified during a routine audit of 
landing records. NMFS would also have eLandings data to monitor 
compliance with the seasonal landing limit, by comparing the 300,000 lb 
per calendar day limit multiplied by the number of calendar days in the 
season opening, with a given vessel's cumulative amount of pollock 
landings in that season opening.
    The proposed action would apply to pollock caught in both the 
Federal waters of the Exclusive Economic Zone (EEZ) and the adjacent 
State of Alaska waters (State waters) by Federally permitted vessels. 
Regulations on the daily and seasonal landing limits at Sec.  
679.7(b)(2)(ii) and (iii) would apply to reporting areas defined at 
Sec.  679.2 and depicted in Figure 3 to part 679, and thus, encompasses 
pollock groundfish fishing in State waters. If the regulation were 
administered only in Federal waters, the unintended result would likely 
be to shift pollock catches and effort to State waters.
    A definition for ``calendar day'' would be added at Sec.  679.2 to 
specify the interval of time in a day from 0001 hours Alaska local time 
to 2400 hours Alaska local time that a catcher vessel is prohibited 
from exceeding a daily pollock landing limit of 300,000 lb at Sec.  
679.7(b)(2)(ii). This definition also would be used to prohibit catcher 
vessels from landing a cumulative amount of unprocessed pollock 
harvested from any GOA reporting area during a directed fishery that 
exceeds the daily landing limit of 300,000 lb times the number of 
calendar days the directed fishery is open in a reporting area at Sec.  
679.7(b)(2)(iii).
    Regulations governing the prohibitions on pollock trip limits at 
Sec.  679.7(b)(2) would be moved to Sec.  679.7(b)(2)(i) to reorganize 
Sec.  679.7(b)(2). The current regulatory text at Sec.  679.7(b)(2) 
that includes the phrase ``on board a vessel'' would be moved from the 
beginning of the sentence to the middle of the sentence in Sec.  
679.7(b)(2)(i). Technical changes to Sec.  679.7(b)(2), recommended by 
NOAA Office for Law Enforcement, are proposed to clarify the 
regulation. These proposed amendments do not change the content or 
meaning of the regulation.
    This rule also would revise Figure 3 to part 679, by increasing the 
accuracy of the geographic boundaries shown on the map and by changing 
the figure title from ``Gulf of Alaska Statistical and Reporting'' to 
read ``Gulf of Alaska Reporting Areas.'' The correction to the title is 
necessary because the Federal statistical areas are not visible in the 
figure or in the coordinates. A Federal statistical area is measured 
from 3 miles to 200 miles from shore. A Federal reporting area is 
measured from shore, including State waters, and extends to 200 miles 
from shore. The correction to the figure is necessary to more 
accurately depict these areas.

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 FMP, 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.

[[Page 62244]]

    An IRFA was prepared, 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 description of the 
action, the reasons why it is being considered, and a statement of the 
objectives of and the legal basis for this action are included at the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. A summary of the remainder of the IRFA follows. A copy of 
this analysis is available from NMFS (see ADDRESSES).
    The directly regulated entities for this proposed action are the 
members of the commercial fishing industry that operate groundfish 
trawl catcher vessels in the GOA. Under a conservative application of 
the Small Business Administration criterion and the best available 
data, there were seven small entities out of a total of 148 vessels in 
2005, and four out of a total of 146 vessels in 2006, which would be 
directly regulated by the proposed action. To provide these estimates, 
earnings from all Alaskan fisheries for 2005 and 2006 were matched with 
the vessels that participated in the GOA pollock fishery for that year.
    In addition to the proposed alternative, the Council evaluated two 
other alternatives, which were rejected because they would be less 
effective than the preferred alternative to address the Council's 
problem statement. The no action alternative was rejected because it is 
not consistent with the intent of the original 1999 Steller sea lion 
protection measures. A second alternative considered and rejected was 
to limit the applicability of the preferred alternative to the Federal 
EEZ. Trawl pollock fisheries in the GOA are managed in the Federal EEZ 
by NMFS under the Gulf of Alaska Groundfish Management Plan, and within 
State waters by the State of Alaska. The alternative to apply daily and 
seasonal trip limits to only Federal EEZ would not encompass activities 
within State waters. As discussed in the RIR/IRFA for this action, the 
pollock resource and the fishery within the GOA occur both within 
Federal and State waters. Taking action in only one area of the GOA 
would limit the effectiveness of the action, since participants in the 
pollock trawl fishery would be free to move to the area without the 
trip limits. From 1999 to 2006, 60.6 percent of pollock was harvested 
in Federal waters and 39.4 percent in State waters. If this proposed 
action is implemented, Federal rules would be consistent with the 
corresponding action taken by the Alaska Board of Fisheries in November 
of 2007.
    The analysis did not identify any Federal rules that would 
duplicate, overlap, or conflict with the proposed rule. This rule would 
impose no additional recordkeeping and reporting requirements on the 
effected vessels.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: October 14, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

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

    1. The authority citation for 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.
    2. In Sec.  679.2 add a definition for ``Calendar day'' in 
alphabetical order to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Calendar day means a 24-hour period that starts at 0001 hours 
Alaska local time and ends at 2400 hours Alaska local time.
* * * * *
    3. In Sec.  679.7, revise paragraph (b)(2) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (b) * * *
    (2) Catcher vessel harvest limit for pollock. (i) Retain more than 
300,000 lb (136 mt) of unprocessed pollock on board a catcher vessel at 
any time during a fishing trip as defined at Sec.  679.2;
    (ii) Land more than 300,000 lb (136 mt) of unprocessed pollock 
harvested in any GOA reporting area to any processor or tender vessel 
during a calendar day as defined at Sec.  679.2; and
    (iii) Land a cumulative amount of unprocessed pollock harvested 
from any GOA reporting area during a directed fishery that exceeds the 
amount in paragraph (b)(2)(ii) of this section multiplied by the number 
of calendar days that occur during the time period the directed fishery 
is open in that reporting area.
* * * * *
    4. In Figure 3 to part 679, the figure heading and map are revised 
to read as follows:

Figure 3 to Part 679--Gulf of Alaska Reporting Areas

BILLING CODE 3510-22-S

[[Page 62245]]

[GRAPHIC] [TIFF OMITTED] TP20OC08.003

* * * * *
[FR Doc. E8-24923 Filed 10-17-08; 8:45 am]
BILLING CODE 3510-22-C