[Federal Register: June 16, 2005 (Volume 70, Number 115)]
[Proposed Rules]
[Page 35054-35061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn05-18]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 050607152-5152-01; I.D. 052605B]
RIN 0648-AT04
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
Retention Standard
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 issues a proposed rule to implement Amendment 79 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP). This action is necessary to reduce
bycatch and improve utilization of groundfish harvested by catcher/
processor trawl vessels in the Bering Sea and Aleutian Island
management area (BSAI) that are not listed American Fisheries Act (AFA)
catcher/processors referred to throughout this proposed rule as non-AFA
catcher/processors. This action is intended to promote the management
objectives of the Improved Retention/Improved Utilization (IRIU)
program, the FMP, and the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act).
DATES: Written comments on the proposed rule must be received by August
1, 2005.
ADDRESSES: Written comments may be sent to Sue Salveson, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region,
NMFS, Attn: Lori Durall. Comments may be submitted by any of the
following methods:
E-mail: BSA79PR-0648-AT04@noaa.gov. Include in the subject
line of email comments the following identifier: GRS. E-mail comments,
with or without attachments, are limited to 5 megabytes;
Webform at the Federal e-Rulemaking Portal:
http:http://www.regulations.gov. Follow the instructions at that site for
submitting comments;
Mail to P.O. Box 21668, Juneau, AK 99802;
Fax: to (907) 586-7557; or
Hand Delivery to the Federal Building, 709 West 9th
Street, Room 420A, Juneau, AK.
Comments regarding the burden-hour estimates or other aspects of
the collection-of information requirements contained in this rule
should be submitted in writing to NMFS at the ADDRESSES above, and e-
mail to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov or
by fax to 202-395-7285.
Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this
action may be obtained from the same mailing address above or from the
NMFS Alaska Region website at http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Jason Anderson at
Jason.anderson@noaa.gov or Jeff Hartman at Jeff.hartman@noaa.gov.
Either may be contacted at (907) 586-7228.
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.
Public comments are being solicited on Amendment 79 through the end
of the comment period specified in the notification of availability of
the FMP amendment (NOA). The NOA published in the Federal Register on
June 2, 2005 (70 FR 32287), with comments on the amendment invited
through August 1, 2005. Public comments on the proposed rule must be
received by the end of the comment period on the amendment, as
published in the NOA, to be considered in the approval/disapproval
decision on the amendment. All comments received by the end of the
comment period on the amendment, whether specifically directed to the
amendment, or the proposed rule, will be considered in the approval/
disapproval decision. Comments received after that date will not be
considered in the approval/disapproval decision on the amendment. To be
considered, written comments must received by the close of business on
the last day of the comment period/ that does not mean postmarked or
otherwise transmitted by that date.
This proposed action is one of several adopted by the Council in
recent years to decrease regulatory and economic discards and increase
catch utilization in the BSAI groundfish fisheries. Amendment 49 to the
FMP was implemented on January 3, 1998 (62 FR 63880), establishing IRIU
standards for pollock and Pacific cod beginning January 3, 1998, and
for rock sole and yellowfin sole (flatfish) beginning January 1, 2003.
In 2001, the Council determined that cost, market and logistical
constraints would prevent non-AFA trawl catcher/processors from being
able to comply with IRIU requirements for flatfish. In June 2002, the
Council developed a problem statement for the development of
alternatives to address the pending effective date of IRIU regulations
for flatfish. In October 2002, the Council adopted Amendment 75 to the
FMP which delayed the effective date of IRIU requirements for flatfish
harvested in the BSAI until June 1, 2004. The Council's intent for this
delay was to provide additional time for the development of bycatch
reduction measures that could be more practically and effectively
applied to the non-AFA trawl catcher/processor sector.
In October 2002, the Council also initiated the analysis of four
new FMP amendments that were intended to augment or replace IRIU
regulations for BSAI flatfish prior to the June 2004 effective date for
this program. Amendment ``B'' would have created flatfish discard
limits for the flatfish fisheries; Amendment 76 would exempt fisheries
with less than a 5-percent IRIU flatfish bycatch rate from IRIU
flatfish regulations; Amendment 79 (the proposed action) would
establish a minimum groundfish retention standard (GRS); and Amendment
80 (as modified at the October 2004 Council meeting) would allocate
specified target species and prohibited species catch (PSC) limits to
non-AFA trawl catcher/processors and allow these vessels to form one or
more fishery cooperatives.
[[Page 35055]]
NMFS partially approved Amendment 75 on September 2, 2003 (68 FR
52412), by approving the removal of the January 1, 2003 effective date
for the IRIU flatfish program from the FMP, and by disapproving the
adjusted effective date of June 1, 2004. NMFS's decision on Amendment
75 had the effect of indefinitely delaying the IRIU flatfish program.
With the indefinite delay of this program, Amendment 76 no longer had
practical application in the BSAI and Amendment ``B'' was rejected by
the Council as infeasible following discussions between industry
representatives and fishery managers. However, the Council continued to
develop Amendments 79 and 80. Amendment 79, which this rule proposes to
implement, was adopted by the Council in June 2003. If approved, it
would supercede Amendment 75. The Council continues to develop
Amendment 80.
As part of Amendment 79, the Council adopted a revision to the
maximum retainable amount (MRA) for pollock harvested by non-AFA
vessels in the BSAI that would allow for increased retention of pollock
incidentally harvested by non-AFA vessels. Before June 2003, the
proposed GRS and pollock MRA revision were component parts of the same
action to reduce discards in the BSAI. The Council recognized that the
MRA change could have immediate benefits for reducing discard in
groundfish fisheries however, and requested NMFS to expedite the
proposed pollock MRA revision as a separate action. The revised MRA for
pollock harvested by non-AFA vessels in the BSAI was implemented by a
final rule published in the Federal Register on June 14, 2004 (69 FR
32901).
GRS Program
The Council's analysis of groundfish retention rates in the BSAI
fishery revealed that vessels in the non-AFA trawl catcher/processor
sector had the lowest retained catch rates of any groundfish trawl
fishery in the BSAI. The EA/RIR/IRFA for Amendment 79 reported that the
non-AFA trawl catcher/processor sector had a retained groundfish catch
rate of 75.1 percent in 2001. However, during the same year in the
BSAI, AFA trawl catcher/processors had a retained catch rate of 99.1
percent, pot catcher/processors had a retained catch rate of 93.5
percent and longline catcher/processors had a retained catch rate of
85.4 percent. In 2001, the non-AFA trawl catcher/processor sector
accounted for 67 percent of all discards in the BSAI. For these
reasons, the GRS program that would be authorized under Amendment 79
focuses on this sector for improved groundfish retention rates and
reduced bycatch.
This action proposes to implement an annual GRS for non-AFA trawl
catcher/processors equal to or greater than 125 ft (38.1 m) length
overall (LOA). The percent of groundfish retained would be a percent
calculated as a specified ratio of the round-weight equivalent of total
retained groundfish to total groundfish catch. The owners or operators
of these vessels would be required to meet this standard on an annual
basis. The use of total groundfish catch in the denominator of the
calculation, instead of total catch, is proposed to avoid a potential
incentive to target on non-groundfish species and to recognize that
retention of non-groundfish often is either impractical or prohibited.
Further, the catch of groundfish that are required to be treated as
prohibited species under 50 CFR 679.20(d)(2) would be removed from the
GRS calculation for individual vessels. By removing groundfish that are
in prohibited species status, vessel operators would not be held
accountable for retaining catch that they are required to discard.
Groundfish species closed to directed fishing would be included in the
calculation for percent of groundfish retained, because species taken
incidental to target species may be retained up to the MRA (50 CFR
679.20(e)). This constraint would provide an incentive to reduce
incidental catch while providing flexibility to catch target species.
The annual GRS ratios as adopted by the Council are shown below:
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TABLE 1. GROUNDFISH RETENTION STANDARD
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GRS Schedule Annual GRS
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2005 65%
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2006 75%
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2007 80%
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2008 and each year after 85%
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The Council considered several alternatives to an annual GRS. The
Council's preferred alternative, however, included an annual GRS
because it would increase the number of vessels that could comply with
the GRS program and addressed NMFS enforcement concerns. The EA/RIR/
IRFA prepared for this action indicates that, in general, more vessels
would be in compliance with the GRS standard as the period over which
the GRS is calculated is increased from a weekly assessment period to a
year. Additionally, NMFS Enforcement expressed concerns that some of
the calculation periods for the GRS under consideration by the Council
(for example, weekly) were infeasible because recordkeeping and
reporting processes did not allow NMFS to match catch and production
estimates over those time periods.
The purpose of the incremental increase of the annual GRS would be
to provide additional time for vessels to adjust fishing operations to
lower bycatch practices. If Amendment 79 is approved, NMFS anticipates
the GRS to be effective January 20, 2006, and vessels would be required
to retain at least 75 percent of their groundfish catch in the initial
year of the program. The Council intended NMFS to approve Amendment 79
and implement the GRS program by 2005 with a GRS of 65 percent.
However, Secretarial review of Amendment 79 and associated rulemaking
was not initiated prior to the start of the 2005 fishing year. Because
the GRS would be enforced on the basis of a calendar year, the 2006
fishing year would be the earliest the GRS program could be
implemented. The EA/RIR/IRFA prepared for this action indicates that 16
BSAI non-AFA trawl catcher/processor vessels would be regulated by the
GRS program. Data presented in the EA/RIR/IRFA to evaluate the effects
of this action on these 16 vessels demonstrates that in 2001 the 16
non-AFA trawl catcher/processors retained 75.1 percent of their total
groundfish catch. Furthermore, the analysis estimates that overall, the
vessels regulated by this proposed action would retain 76.3 percent of
total groundfish catch in 2006. For 2006, the analysis estimates that
five of these 16 vessels would need to increase total groundfish
retention to meet the 75-percent standard. NMFS understands that some
vessels may incur an additional burden to meet a GRS of 75 percent
rather than 65 percent for the first year of the program. The EA/RIR/
IRFA and Council anticipate that this additional burden would be
minimal because this sector has demonstrated groundfish retention
amounts that frequently exceed 65 percent and have met the 75-percent
level in 2001. It is NMFS's opinion that the starting level of 75
percent in 2006 is consistent with Council intent on this action and
practicable according to the analysis presented on National Standards 7
and 9 in the EA/RIR/IRFA. However, NMFS requests public comment on the
implementation of the GRS program at 75 percent in 2006. In
[[Page 35056]]
the event that NMFS determines, based on public comment, that the
initiation of the GRS at 75 percent is not consistent with Council
intent to gradually increase the GRS regardless of when the program is
implemented, an initial GRS of 65 percent may be substituted for the 75
percent GRS in the final rule.
The FMP would establish the GRS as a tool for reducing discards of
groundfish for any BSAI groundfish fishery sector. However, the Council
specified that regulations implementing a GRS would only apply to non-
AFA trawl catcher/processors that are 125 ft (38.1 m) LOA or greater.
Data provided in the EA/RIR/IRFA indicate that other BSAI groundfish
trawl sectors consistently achieve or exceed these standards. In 2001,
non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA
accounted for only 8 percent of the total catch of all non-AFA trawl
catcher/processors and 7 percent of the retained catch. Given the
relatively small contribution to this sector's overall harvest and
recognizing that compliance costs associated with observers and scale
monitoring requirements would be relatively higher for vessels less
than 125 feet (38.1 m) LOA, the Council chose to exclude these vessels
from the proposed GRS program.
The Council also specified that regulations implementing the GRS
would require vessels subject to the GRS program to create products
that yield at least 15 percent from each retained fish. Current
regulations at Sec. 679.27(i) set forth a 15-percent utilization
requirement for all IRIU species. This action proposes to add
groundfish listed in Table 2a to Part 679, except for any groundfish on
prohibited species status, as IRIU species. Non-AFA trawl catcher/
processors equal to or greater than 125 ft (38.1 m) LOA would be
required to meet these current utilization standards for retained
groundfish species used in the calculation for percent of retained
groundfish.
Monitoring and Enforcement of the GRS
The GRS would be enforced on an individual vessel basis as opposed
to a sector basis, so that those vessels that chronically fail to meet
the standard could not impose a penalty on those vessels that
consistently meet these requirements. All regulated vessels would be
required to use NMFS-approved scales to determine the weight of total
catch and either obtain sufficient observer coverage to ensure every
haul is observed for verification that all fish are weighed or use an
alternative scale use verification plan approved by NMFS. Each vessel
would be required to provide a single location for observers to collect
samples to reduce the potential of sample bias. Observer sampling of
each haul would be necessary to determine the percentage of the total
catch that is comprised of groundfish. This information would be used
to estimate total groundfish weight used in the denominator of the GRS
calculation. The round weight of retained groundfish catch would be
calculated using NMFS standard product recovery rates (PRRs) set forth
in regulations at Table 3 to Part 679. For each product/species
combination, retained tonnage would be equal to primary product tonnage
divided by the applicable PRR. For primary products that do not have a
PRR specified in Table 3, NMFS would use best available data until a
PRR could be established in regulation. Since all IRIU species must
meet minimum utilization requirements at Sec. 679.27(i), any primary
product with a PRR less than 15 percent of the total weight of retained
or lawfully transferred products produced from catch or receipt of that
IR/IU species would not comply with this action. Further Council action
and rulemaking would be required to include any primary product that
could not meet these utilization standards.
NMFS proposes to prohibit the mixing of catch from two or more
hauls prior to sampling by an observer. NMFS proposes this prohibition
because all hauls must be observed and sampled, and it is not possible
to obtain a discrete sample if hauls are mixed. Non-AFA catcher/
processors using trawl gear occasionally mix catch from two or more
hauls prior to sampling by an observer. However, the amount of
groundfish retained under the GRS would be calculated based on the
proportion of groundfish in each haul. To determine the proportion of
groundfish in each haul, each haul would be sampled by an observer for
species composition. The proportion of groundfish in each species
composition sample would be extrapolated to the total haul weight. For
purposes of calculating the percent of retained groundfish, NMFS would
not be able to determine accurately the total haul weight of groundfish
or species composition for a specific haul if two or more hauls are
mixed.
Recent enforcement actions concerning intentional presorting of
catch to bias observed catch rates of Pacific halibut document the
incentive for biasing observer samples to optimize groundfish catch
relative to constraining PSC or other groundfish catch. However, NMFS
believes the ability to bias observer samples could be reduced under
the GRS in comparison with the status quo by implementing the
monitoring provisions that would be required under this rule. These
include space and catch access provisions that would be approved by
NMFS and that would allow observers to monitor all catch between the
bin and the scale used to weigh total catch.
Recent enforcement actions also have identified an issue with
observers not being willing to serve as witnesses in enforcement
actions because of inconvenience, cost, and the need for the observer
to refamiliarize herself or himself with the data and other records
relating to the alleged violation. This could be a particular problem
when numerous observers may have information regarding evidence
necessary to prove the violations of the GRS. To address this issue,
and to acknowledge the critical role observers play in effective
management and enforcement of Alaska fisheries, NMFS intends to
implement a program that provides for payment of witness fees to any
observer who, at the request of an enforcement attorney, assists in the
prosecution of an enforcement action. NMFS believes that this program
will mitigate, to some degree, the inconvenience and other detriments
that may otherwise dissuade an observer from assisting the government
in proving its case.
Authority for Bycatch Reduction, the National Standards and the GRS
The EA/RIR/IRFA for Amendment 79 (see ADDRESSES), provides
information on Magnuson-Stevens Act requirements to reduce bycatch and
increase retention of catch. The analysis also highlights the relevance
of National Standards 7 and 9 in the selection of the Council's
preferred alternative. In their deliberations, the Council stated that
its adoption of Amendment 79 balances conservation through reductions
in discards (National Standard 9) and minimizes costs where practicable
(National Standard 7) by enforcing higher retention rates only on the
specific section of the fleet with the largest problem.
Reduction of bycatch for fisheries and other living marine
resources has become a national and global concern. For example, on
March 6, 2003, NMFS issued a National Bycatch Strategy to address
issues related to the management of bycatch within the Nation's
fisheries. To provide the authority for programs like the GRS, Congress
amended the Magnuson-Stevens Act to require each fishery management
plan approved by the
[[Page 35057]]
Secretary to ``establish a standardized reporting methodology to assess
the amount and type of bycatch occurring in the fishery, and include
conservation and management measures that, to the extent practicable
and in the following priority- (A) minimize bycatch; and (B) minimize
the mortality of bycatch which cannot be avoided.'' Also, NMFS
regulations at 50 CFR part 600.350(d)(3) provide guidance on factors
that should be considered in determining the practicability of a
particular management action to minimize bycatch or the mortality of
bycatch. Relevant factors were considered and assessed in the EA/RIR/
IRFA prepared for this action and are summarized below.
Comparing GRS Tradeoffs
The Council deliberated on Magnuson-Stevens Act requirements to
reduce bycatch and concluded that progress made in adhering to the
National Standards and potential consumer and environmental benefits
from improved retention and utilization of groundfish offset the costs
of enforcement, increased observers, vessel modifications, operational
adjustments and recordkeeping and reporting. The EA/RIR/IRFA describes
these conclusions relative to conservation goals through reductions in
discards (National Standard 9) and minimization of costs where
practicable (National Standard 7) by enforcing higher retention rates
only on the specific section of the fleet with a recent history of
higher discard rates relative to other BSAI groundfish fisheries. The
analysis notes that the growing national and regional emphasis on
reduction of discards reflects national and regional consumer interest
in and potential for non-market, non-consumptive, or environmental
benefits for this type of program. The analysis also recognizes the
technical difficulty of quantifying those potential benefits. The
Council also evaluated a range of alternatives to Amendment 79 that
would have imposed greater compliance costs on industry, such as a
proposal for full retention of specified flatfish species in the
original IRIU program implemented under Amendment 49. The Council
considered and rejected recommendations to enforce the GRS on other
BSAI groundfish sectors, concluding that an application of the action
to the target fleet with the highest discard rates would provide the
greatest benefit in bycatch reduction through the GRS program. At the
same time, the preferred alternative also would mitigate the cost of
the program on the industry and sector it most directly impacts. For
example, the preferred alternative would mitigate the adverse impacts
of the program by excluding non-AFA trawl catcher/processor vessels
less than 125 ft (38.1 m) LOA. Non-AFA trawl catcher/processor vessels
have ``specific and particular operational concerns'' associated with
the enforcement and monitoring requirements of the GRS. It also
gradually would phase in the GRS program over time which would allow
the affected vessels to adjust to the retention requirements. This
phase-in would provide that portion of the industry most impacted by
GRS requirements with the opportunity to continue targeting rock sole
and yellowfin sole, while working to reduce discards in these
fisheries.
Description of Regulations Specific to the GRS Program
Current recordkeeping and reporting regulations at Sec.
679.5(a)(7)(iv)(C)(3) require the owners or operators of a catcher/
processor using trawl gear to record an estimate of total round weight
of groundfish by haul in a NMFS daily cumulative production logbook
(DCPL). Other regulations, including those that would implement
monitoring requirements for the GRS, require all catch on certain
catcher/processors to be weighed on NMFS-approved scales. Proposed
revisions to regulations at Sec. 679.5(a)(7)(iv)(C)(3) would require
all vessel owners or operators of vessels subject to the GRS to record
in the DCPL the total catch scale weight for each haul. This would
increase the quality of data available to NMFS managers and provide
NMFS enforcement with a tool to verify total catch weight for vessels
subject to the GRS program.
Proposed regulations at Sec. 679.7(m) establish prohibitions
specific to the GRS program. Regulations at Sec. 679.7(m)(1) would
prohibit owners or operators from discarding groundfish in an amount
greater than allowed under the GRS program.
Regulations at Sec. 679.7(m)(2) would prohibit owners or operators
from failing to submit, submitting inaccurate information, or
intentionally submitting false information that relates to the GRS
program.
Regulations at Sec. 679.7(m)(3) would (1) prohibit an owner or
operator from processing or discarding any catch that was not weighed
on a NMFS-approved scale that complies with requirements described at
Sec. 679.28(b), (2) prohibit the sorting of catch prior to the catch
passing over the scale, and (3) require that all catch be available to
be sampled by an observer.
Regulations at Sec. 679.7(m)(4) would prohibit the processing of
any catch by a vessel that does not comply with observer sampling
station requirements described at Sec. 679.28(d). Also, as previously
described, regulations at Sec. 679.7(m)(5) would prohibit the mixing
of catch from two or more hauls.
Regulations at Sec. 679.27(b)(4) would describe the specific
groundfish species to be used in the GRS calculation. This would
include all species listed in Table 2a to 50 CFR part 679, except for
listed groundfish species that are in prohibited species status. By
establishing these species as IRIU species, they would be subject to
the 15-percent utilization requirements currently found at Sec.
679.27(i). Regulations at Sec. 679.27(j)(1) would also describe the
vessels that would be required to comply with the GRS program and the
time period for which the GRS would be calculated.
Regulations at Sec. 679.27(j)(2)(i) would show the equation used
for the GRS calculation and describe the variable and source of the
variable used in each component of the calculation. Also, Sec.
679.27(j)(2)(ii) would describe the schedule for increasing GRS
percentages from 2006 through 2008 and beyond. As described above, the
GRS is proposed to be implemented in 2006 at the 2006 level of 75
percent, although NMFS specifically requests public comment on whether
a first year rate of 65 percent may be more appropriate.
Regulations at Sec. 679.27(j)(3) would describe the monitoring
requirements for vessels subject to the GRS program. Section
679.27(j)(3)(i) would require vessels subject to the GRS program to
comply with minimum observer coverage requirements at Sec.
679.50(c)(6). These requirements are described below. Regulations at
Sec. 679.27(j)(3)(ii) would require vessels to weigh each haul on a
NMFS-approved scale and comply with catch weighing requirements
described at Sec. 679.28(b). Also, the vessel owner or operator would
be required to ensure that catch from each haul is available to be
sampled by an observer from a single location at a single collection
point. Regulations at Sec. 679.27(j)(3)(iii) would require the owner
or operator to provide an observer sampling station that meets
requirements described at Sec. 679.28(d).
Vessels required to comply with the GRS program also may operate in
areas other than the BSAI. Total retained groundfish is calculated from
total fish product divided by the PRR for each species. For purposes of
enforcing GRS requirements, it is necessary to separate fish or fish
product subject to the GRS program from fish or fish product not
subject to the GRS program. Regulations at Sec. 679.27(j)(4) would
require all owners or operators required to comply
[[Page 35058]]
with the GRS program to either (1) offload or transfer all fish or fish
product prior to harvesting fish outside of the BSAI; or (2) ensure
that the vessel is in compliance with recordkeeping and reporting and
monitoring requirements described above and at Sec. 679.5(a)(7)(iv)(C)
and Sec. 679.27(j)(3) at all times when fishing outside the BSAI.
These requirements will improve the enforcement of this proposed action
by assuring that all hauls used to estimate the GRS are observed, and
that a record is created by the vessel operator to compare with the
observer record.
Regulations at Sec. 679.27(j)(5) would require all vessels
required to comply with the GRS program that have BSAI groundfish on
board, groundfish product on board, or receive deliveries of unsorted
catch from vessels not required to comply with the GRS program, to
comply with monitoring requirements described above and at Sec.
679.27(j)(3). For purposes of enforcing GRS requirements, this
requirement is necessary to separate fish or fish product subject to
the GRS program from fish or fish product not subject to the GRS
program.
Regulations at Sec. Sec. 679.50(c)(6)(i) and (c)(6)(ii) would
describe observer coverage and observer workload requirements for
vessels subject to the GRS program. The owner or operator of a vessel
subject to the GRS program would be required to provide two Level 2
NMFS-certified observers, at least one of which must be certified as a
lead Level 2 observer, for each day the vessel is used to harvest or
process fish in the BSAI. The owner or operator would be required to
provide more than two observers if workload restrictions would
otherwise preclude sampling duties. The time required for an observer
to complete sampling, data recording, and data communications would not
be permitted to exceed 12 hours in a 24-hour period and the observer
would not be permitted to conduct sampling duties for more than 9 hours
in each 24-hour period. NMFS could authorize an alternative processing
plan that could allow the vessel to carry only one lead Level 2 NMFS-
certified observer if the vessel owner or operator supplies vessel
logbook or observer data to NMFS that demonstrates these duties can be
completed within these workload restrictions. NMFS would not authorize
an alternative processing plan if it would require the observer to
divide 12-hour shifts into shifts of less than 6 hours.
Classification
At this time, NMFS has not determined that the FMP amendment that
this proposed rule would implement is consistent with the national
standards of the Magnuson-Stevens Act and other applicable laws. NMFS,
in making that determination, will take into account the data, views,
and comments received during the comment period.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an initial regulatory flexibility analysis (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 description of the action, why it is being
considered, and the legal basis for this action are provided above. A
copy of the IRFA is available from NMFS (see ADDRESSES). A summary of
the analysis follows.
This proposed action is intended to decrease regulatory and
economic discards and increase catch utilization in the BSAI groundfish
fisheries by implementing an annual GRS for non-AFA trawl catcher/
processors equal to or greater than 125 ft (38.1 m) LOA. The percent of
groundfish retained would be a percent calculated as a specified ratio
of the round-weight equivalent of total retained groundfish to total
groundfish catch. The GRS would gradually increase from 75 percent in
2006 to 85 percent in 2008.
The GRS program would apply only to non-AFA catcher/processors
using trawl gear that are 125 ft (38.1 m) LOA or greater. Sixteen head-
and-gut trawl catcher/processors meet these criteria. Based on the best
available data, it is improbable that any of these vessels are small
entities. However, NMFS does not have the level of data and information
to make a statistically confident estimation of the number of small
entities affected by this proposed action. Therefore, an IRFA has been
prepared.
Alternative 1 described in the EA/RIR/IRFA is the status quo
alternative. Current regulations regarding retention and discards would
remain in effect.
Alternative 2 would establish a GRS of 70 percent. The standard
would apply to non-AFA trawl catcher/processors 125 ft (38.1 m) LOA or
greater and enforced at the sector level. Compliance with the GRS would
be determined at the end of a fishing year. The MRA for pollock would
be increased to 35 percent for all non-AFA trawl catcher/processors,
including vessels less than 125 ft (38.1 m) LOA, and compliance with
the pollock MRA would be monitored and enforced on each vessel at the
end of each offload. NMFS-approved scales, a certified observer
sampling station, and observer coverage of every haul would be used to
measure and verify total catch. Alternative processing plans, approved
by NMFS, could be substituted for observer coverage of every haul.
Retained catch would be calculated using NMFS standard PRRs.
Alternative 3 would establish a GRS of 85 percent for January
through May of each calendar year. The GRS would increase to 90 percent
for the remainder of the year. The GRS would apply to individual non-
AFA catcher/processors 125 feet (38.1 m) LOA or greater. Non-AFA
catcher/processors less than 125 feet (38.1 m) LOA would be exempt from
the GRS program if their weekly production is less than 600 mt. The MRA
for pollock would be revised so that it is enforced at any time.
Compliance with the GRS would be monitored and enforced at the end of
each week for each area and gear type. NMFS-approved scales, a
certified observer sampling station, and observation of every haul
would be used to measure and verify total catch. Retained catch would
be calculated using standard PRRs.
Alternative 4 is the preferred alternative, and would implement a
gradually increasing annual GRS for non-AFA trawl catcher/processors
equal to or greater than 125 ft (38.1 m) length overall (LOA). This
alternative, including provisions to monitor and enforce this action,
is described in further detail above in the preamble to this proposed
action.
Retaining additional groundfish is not expected to generate
additional revenues, and could result in lower revenues if these fish
displace higher value fish. Vessels subject to the GRS program could
incur operating costs associated with holding, processing,
transporting, and transferring fish that are of relatively low value.
However, changes in technology, fishing techniques, and markets could
reduce these potential costs.
Vessels subject to this proposed action would be required to comply
with the monitoring components described in the preamble above. NMFS
estimates 7 of the 16 vessels subject to the GRS program would be
required to install NMFS-approved flow scales, which are estimated to
cost approximately $50,000 each. Equipment necessary to comply with
observer sampling station requirements is estimated to cost between
$6,000 and $12,000. Installation of this equipment is estimated to cost
between $20,000 and $100,000. Under the GRS program, every haul would
be required to be available for sampling by a NMFS-
[[Page 35059]]
certified observer. This requirement would likely necessitate an
additional observer on each vessel, which is estimated to cost $82,000
per vessel per year.
This action proposes to revise recordkeeping and reporting
requirements for vessels subject to the GRS. Proposed revisions to
regulations would require all vessel owners or operators of vessels
subject to the GRS to record in the DCPL the total catch scale weight
for each haul. This would increase the quality of data available to
NMFS managers and provide NMFS enforcement with a tool to verify total
catch weight for vessels subject to the GRS program.
The analysis did not reveal any Federal rules that duplicate,
overlap, or conflict with the proposed action.
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). These requirements have been submitted to OMB for approval under
OMB No. 0648-0330. Public reporting burden per response for: at-sea
scale inspection report/sticker is estimated to average 6 minutes;
record of daily scale tests is estimated to average 45 minutes; printed
output of at-sea scale weight is estimated to average 45 minutes;
observer sampling station inspection request is estimated to average 2
hours; and prior notice to observer of scale test is estimated to
average 2 minutes.
This proposed rule contains a collection-of-information requirement
subject to the PRA and which has been approved by OMB under control
number OMB 0648-0213. Public reporting burden for catcher/processor
trawl gear daily cumulative production logbook is estimated to average
30 minutes per response.
Estimated response times include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: whether these proposed
collections of information are necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
Alaska Region at the ADDRESSES above, and e-mail to
David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: June 10, 2005.
Rebecca Lent,
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 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.; 1540(f); 1801 et seq.; 1851
note; 3631 et seq.
2. In Sec. 679.2, a definition of ``Groundfish Retention Standard
(GRS)'' is added to read as follows:
Sec. 679.2 Definitions.
* * * * *
Groundfish Retention Standard (GRS) means the retention and
utilization standard for groundfish described at Sec. 679.27(j) of
this part.
* * * * *
3. In Sec. 679.5, paragraph (a)(7)(iv)(C)(3) is revised to read as
follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
(a) * * *
(7) * * *
(iv) * * *
(C) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enter ... In a ... If a ...
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * * ............................................. .............................................
(3) Estimated total round weight of groundfish by haul. If Trawl DCPL C/P
the owner or operator of the vessel is required to comply
with the GRS program described at Sec. 679.27(j), the
operator or manager must enter the round weight total of
all catch by haul as measured by the NMFS-approved scale.
* * * * * * * ............................................. .............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
4. In Sec. 679.7, paragraph (m) is added to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(m) Prohibitions specific to GRS. It is unlawful for the owner or
operator of a catcher/processor that is 125 ft (38.1 m) LOA or longer
and not listed in Sec. 679.4(l)(2)(i) and using trawl gear in the BSAI
to:
(1) Retain an amount of groundfish during a fishing year that is
less than the amount of groundfish required to be retained under the
GRS program described at Sec. 679.27(j).
(2) Fail to submit, submit inaccurate information, or intentionally
submit false information on any report, application or statement
required under this part.
(3) Process or discard any catch not weighed on a NMFS-approved
scale that complies with the requirements of Sec. 679.28(b). Catch
must not be sorted before it is weighed and each haul must be available
to be sampled by an observer for species composition.
(4) Process any groundfish without an observer sampling station
that complies with Sec. 679.28(d).
(5) Combine catch from two or more hauls.
5. In Sec. 679.27, paragraphs (b)(4) and (j) are added to read as
follows:
Sec. 679.27 Improved Retention/Improved Utilization Program.
* * * * *
(b) * * *
(4) All species listed in Table 2a to this part for purposes of the
GRS program described in Sec. 679.27(j), except
[[Page 35060]]
for groundfish in prohibited species status at the end of each
reporting week.
* * * * *
(j) Groundfish retention standard--(1) Applicability. The operator
of a catcher/processor that is 125 ft (38.1 m) LOA or longer, not
listed in Sec. 679.4(l)(2)(i), and using trawl gear must comply with
the GRS set forth under Sec. 679.27(j)(2)(ii) while fishing for or
processing groundfish caught from the BSAI between January 1 and
December 31 of each year. The owner of a catcher/processor 125 ft (38.1
m) LOA or longer is required to ensure that the operator complies with
the GRS program set forth under Sec. 679.27(j)(2)(ii). No part of the
GRS program supersedes minimum retention or utilization requirements
for IR/IU species found in this section.
(2) Percent of groundfish retained calculation. (i) For any fishing
year, the percent of groundfish retained by each vessel identified
under paragraph (j)(1)(i) of this section would be calculated using the
following equations:
[GRAPHIC] [TIFF OMITTED] TP16JN05.009
Substituting the value for GFroundweight into the following
equation,
GFR% = (GFroundweight/TotalGF)*100
Where:
GFroundweight = the total annual round weight equivalent of all
retained product weights for each IR/IU groundfish species.
PWspeciesn = the total annual product weight for each
groundfish species listed in Table 2a to this part by product type as
reported in the vessel's weekly production report required at Sec.
679.5(i).
PRRspeciesn = the standard product recovery rate for
each groundfish species and product combination listed in Table 3 to
Part 679.
GFR% = the groundfish retention percentage for a vessel calculated
as GFroundweight divided by the total weight of groundfish catch.
TotalGF = the total groundfish catch weight as measured by the flow
scale measurement, less any non-groundfish, PSC species or groundfish
species on prohibited species status under Sec. 679.20.
(ii) The following table displays annual minimum groundfish
retention requirements for each vessel required to comply with the GRS
program under paragraph (j)(1)(i) of this section:
------------------------------------------------------------------------
GROUNDFISH RETENTION STANDARD
-------------------------------------------------------------------------
GRS Schedule Annual GRS
------------------------------------------------------------------------
2006 75%
------------------------------------------------------------------------
2007 80%
------------------------------------------------------------------------
2008 and each year after 85%
------------------------------------------------------------------------
(3) Monitoring requirements--(i) Observer coverage requirements. In
addition to complying with minimum observer coverage requirements at
Sec. 679.50(c), the owner or operator of a vessel required to comply
with the GRS program must comply with observer coverage requirements as
described at Sec. 679.50(c)(6) at all times the vessel is used to
harvest groundfish in the BSAI with trawl gear.
(ii) Catch weighing. For each haul, all catch caught by a vessel
required to comply with the GRS program must be weighed on a NMFS-
approved scale and made available for sampling by a NMFS certified
observer at a single location. The owner or operator of a vessel
required to comply with the GRS program must ensure that the vessel is
in compliance with the scale requirements described at Sec. 679.28(b),
that each haul is weighed separately, and that no sorting of catch
takes place prior to weighing. All weighed catch must be recorded as
required at Sec. 679.5(a)(7)(iv)(C).
(iii) Observer sampling station. The owner or operator of a vessel
required to comply with the GRS program must provide an observer
sampling station as described at Sec. 679.28(d) and the owner of a
vessel required to comply with the GRS program must ensure that the
vessel operator complies with the observer sampling station
requirements described at Sec. 679.28(d) at all times the vessel is
used to harvest groundfish in the BSAI. In addition to the requirements
at Sec. 679.28(d)(7)(ii), observers must be able to sample all catch
from a single point along the conveyer belt conveying unsorted catch,
and when standing where unsorted catch is collected, the observer must
be able to see that no catch has been removed between the bin and where
unsorted catch is collected.
(4) Requirements for vessels that also harvest groundfish outside
of the BSAI. The operator of a vessel required to comply with the GRS
program must offload or transfer all fish or fish product prior to
harvesting fish outside the BSAI, unless the operator of the vessel is
in compliance with the recordkeeping and reporting and monitoring
requirements described at Sec. 679.5(a)(7)(iv)(C) and Sec.
679.27(j)(3) at all times the vessel harvests or processes groundfish
outside the BSAI.
(5) Requirements for vessels receiving deliveries of unsorted
catch. The owner or operator of a vessel required to comply with Sec.
679.27(j) that receives deliveries of unsorted catch while processing
or possessing fish subject to the GRS program must comply with Sec.
679.27(j)(3) while processing deliveries of unsorted catch.
6. In Sec. 679.50, paragraph (c)(6) is added to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 2007.
* * * * *
(c) * * *
(6) Catcher/processors 125 ft (38.1 m) LOA or longer and not listed
in Sec. 679.4(l)(2)(i) using trawl gear in the BSAI--(i) Coverage
requirement. The owner or operator of a catcher/processor using trawl
gear and not listed in Sec. 679.4(l)(2)(i) must provide at least two
level 2 NMFS-certified observers, at least one of which must be
certified as a lead level 2 observer, for each day that the vessel is
used to harvest or process groundfish in the BSAI. More than two
observers are required if the observer workload restriction at
paragraph (c)(6)(ii) of this section would otherwise preclude sampling
as required under Sec. 679.27(j)(3). NMFS may authorize the vessel to
carry only one lead level 2 observer if the vessel owner or operator
supplies vessel logbook or observer data that demonstrate that one
level 2 observer can complete sampling, data recording, and data
communication duties within the workload requirements described in
Sec. 679.50(c)(6)(ii) under an alternative processing plan. NMFS will
not authorize an alternative processing plan with only one lead level 2
observer if it would require the observer to divide a 12-hour shift
into shifts of less than 6 hours.
(ii) Observer work load. The time required for the observer to
complete sampling, data recording, and data communication duties must
not exceed 12 consecutive hours in each 24-hour
[[Page 35061]]
period, and the observer must not conduct sampling duties more than 9
hours in each 24-hour period.
* * * * *
[FR Doc. 05-11918 Filed 6-15-05; 8:45 am]
BILLING CODE 3510-22-S