Groundfish of the Gulf of Alaska; Groundfish Fishery of the Bering Sea and Aleutian Islands Area

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 672 and 675

[Docket No. 930954-4110; I.D. 092193A]

RIN 0648-AF54

Groundfish of the Gulf of Alaska; Groundfish Fishery of the

Bering Sea and Aleutian Islands Area

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues final regulations to change requirements for

observer coverage of the groundfish fisheries in the Gulf of Alaska

(GOA) and the Bering Sea and Aleutian Islands management area (BSAI).

This action is necessary to improve management of the groundfish

fisheries off Alaska. The intended effect of this action is to increase

observer coverage of the groundfish harvests and to promote the fishery

management objectives of the Fishery Management Plan (FMP) for

Groundfish of the GOA and the FMP for the Groundfish Fishery of the

BSAI.

EFFECTIVE DATE: Effective July 1, 1994, except for

Sec. 672.27(c)(1)(iii)(F), which will become effective May 31, 1994.

ADDRESSES: Copies of the environmental assessment/regulatory impact

review/final regulatory flexibility analysis (EA/RIR/FRFA) and the

Observer Plan may be obtained from the Fisheries Management Division,

Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802 (Attn: Lori

Gravel).

FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, Fisheries

Management Division, Alaska Region, NMFS at 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

Fishing for groundfish by vessels in the exclusive economic zone

(EEZ) of the GOA and the BSAI is managed by the Secretary of Commerce

(Secretary) according to the FMP for Groundfish of the GOA and the FMP

for the Groundfish Fishery of the BSAI. The FMPs were prepared by the

North Pacific Fishery Management Council (Council) under the Magnuson

Fishery Conservation and Management Act (Magnuson Act) and are

implemented by regulations governing the U.S. groundfish fisheries at

50 CFR parts 620, 672, and 675.

Amendments 13 and 18 to the groundfish FMPs for the BSAI and GOA,

respectively, authorize a comprehensive domestic fishery observer

program. An Observer Plan to implement the program was prepared by the

Secretary in consultation with the Council and issued by NMFS,

effective February 7, 1990 (55 FR 4839, February 12, 1990). At its

December 1992 meeting, the Council reviewed draft changes to the

Observer Plan that were developed by NMFS and a Council-Appointed

Industry Oversight Committee. The Council recommended that NMFS make

the draft changes and initiate a rulemaking to implement them.

A proposed rule to implement the Council's recommendation was

published in the Federal Register October 28, 1993 (58 FR 57979).

Comments on the proposed rule were invited through November 29, 1993.

Two letters of comments were received and are summarized in the

``Response to Comments'' section of this preamble.

After reviewing the reasons for the draft changes to the Observer

Plan and the comments on the proposed rule to implement them, NMFS has

determined that this action is necessary for fishery conservation and

management and implements the following changes to the Observer Plan

and its implementing regulations at Secs. 672.27 and 675.25.

(1) Change the definition of a ``fishing trip'' and base

observer coverage requirements on a new definition of ``fishing

days'' instead of ``fishing trip days''. ``Fishing day'' is defined

as a 24-hour period from 0001 Alaska local time (A.l.t.) through

2400 A.l.t. during which fishing gear is retrieved and groundfish,

as defined at 50 CFR 672.2 and 675.2, are retained for further

processing.

(2) Increase observer coverage on vessels equal to or greater

than 60 feet (ft)(18.3 m) in length overall (LOA) but less than 125

ft (38.1 m) LOA during each calendar quarter, so that vessels in

this size category are required to carry an observer 30 percent of

the fishing days in each calendar quarter in which the vessels

participate for more than 3 fishing days in a directed fishery for

groundfish. Each vessel required to carry an observer during a

calendar quarter must carry an observer during at least one fishing

trip for each of the following fisheries in which the vessel

participates: Pollock, Pacific cod, sablefish, rockfish, flatfish,

and other species of groundfish.

(3) Increase observer coverage of vessels using hook-and-line

gear in the Eastern Regulatory Area of the GOA by requiring

operators of catcher/processor and catcher vessels using hook-and-

line gear that participate in a directed fishery for groundfish to

carry a NMFS-certified observer during at least one fishing trip in

the Eastern Regulatory Area during each calendar quarter that they

participate in a directed fishery for groundfish in this area;

(4) Revise observer coverage requirements for vessels using pot

gear to participate in a directed fishery for groundfish, so that

each vessel using pot gear that is equal to or greater than 60 ft

(18.3 m) LOA is required to carry an observer during at least 30

percent of its fishing days during each calendar quarter in which it

participates for more than 3 days in a directed groundfish pot gear

fishery; and

(5) Revise the conflict of interest standards for NMFS-certified

observers and observer contractors. Revisions include: (1) Placing

restrictions on observers who were employed in the observed fishery

within the preceding 12 months; and (2) prohibiting observer

contractors from assigning observers in response to requests for or

against a specific individual or a specific gender, race, creed, or

age of individual.

The intent of these measures is to increase observer coverage of

the groundfish harvests and to promote the fishery management

objectives of the FMPs. Further descriptions of, and reasons for, these

measures are contained in the preamble to the proposed rule (58 FR

57979, October 28, 1993).

With the exception of Sec. 672.27(c)(1)(iii)(F), the effective date

of the final rule is July 1, 1994. This date coincides with the

beginning of the third calendar quarter and will facilitate the

implementation of new quarterly observer coverage requirements by

reducing confusion that would result from a mid-quarter effective date.

Section 672.27(c)(1)(iii)(F) reduces observer coverage requirements for

vessels 125 ft LOA or longer fishing for groundfish with pot gear, and

thus, provides relief to vessel operators in this category. Therefore,

NMFS has determined that the effective date for this section should not

be delayed until July 1, 1994. The effective date for

Sec. 672.27(c)(1)(iii)(F) is May 31, 1994.

Changes in the Final Rule From the Proposed Rule

This final rule includes three changes from the proposed rule.

These changes are described as follows:

First, technical changes are made to Secs. 672.27 and 675.25 to

include minor editorial revisions and metric equivalents for specified

lengths of vessels that require different levels of observer coverage.

Second, Sec. 672.27(c)(1)(v)(C) is amended to clarify that a

catcher vessel delivering groundfish to a shoreside processor or to a

mothership in Alaska State waters during a weekly reporting period will

be assigned to a fishery category based on the retained catch

composition of all groundfish delivered to processors during that

weekly reporting period and reported on Alaska Department of Fish and

Game fish tickets.

Finally, the Observer Plan is corrected by removing from Attachment

3 (Standards of Observer Conduct) an inappropriate reference to title

15 CFR subtitle A, part O, of the U.S. Department of Commerce

Regulations. These regulations pertained to standards of conduct for

employees of the U.S. Department of Commerce. Certified observers are

not NMFS employees and therefore cannot be held to these standards. The

Observer Plan continues to require certified observers to comply with

the conflict of interest standards and general standards of behavior

set out in Attachments 3 and 4 of the amended Plan.

Response to Comments

Two letters were received within the comment period that ended

November 29, 1993. A summary of comments and NMFS's responses follow.

Comment 1. The proposed action bases observer coverage on fishing

days instead of fishing trip days and increases observer coverage on

vessels equal to or greater than 60 ft (18.3 m) LOA but less than 125

ft (38.1 m) LOA. This action would increase the financial burden on the

catcher boat fleet, particularly on those vessels delivering to

shoreside facilities that are required to have observer coverage. This

results in an inequitable impact on the catcher boat fleet and further

aggravates the disproportionate effect of the Observer Program on

catcher vessels. Given these effects, implementation of measures to

increase observer coverage should be delayed until after the North

Pacific Fisheries Research Plan is effective.

Response. NMFS acknowledges that the proposed rule would increase

observer costs for vessels equal to or greater than 60 ft (18.3 m) LOA

but less than 125 ft (38.1 m) LOA that use trawl or hook-and-line gear

to participate in a directed fishery for Alaska groundfish. Larger

vessels currently are required to have an observer on board at all

times and are not affected by the proposed change in coverage

requirements. The increased observer coverage for vessels equal to or

greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1 m) LOA is

necessary to obtain more adequate information on which the groundfish

fisheries are managed, including better estimates of groundfish catch,

discard amounts, and prohibited species bycatch rates. Delay of

regulatory action to increase observer coverage until the North Pacific

Fisheries Research Plan is effective would neglect identified data

requirements necessary for effective management of the Alaska

groundfish fisheries.

Comment 2. The increased financial burden to the small boat fleet

that will ensue from increased observer coverage is out of proportion

to the benefits that might result, particularly if NMFS continues to

use observer data primarily as a basis for fishery closures or

enforcement, rather than for more effective fishery management.

Response. NMFS's primary responsibility for inseason management of

the groundfish resource is to monitor groundfish harvests and

prohibited species bycatch rates, so that when a groundfish total

allowable catch (TAC) or a prohibited species bycatch allowance is

reached, fishery closures can be implemented to prevent specified TACs

or bycatch allowances from being exceeded.

Existing observer coverage requirements established for vessels

equal to or greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1

m) LOA were determined by the Council and its ad hoc Observer Committee

to be inadequate to meet data needs for effective monitoring of

groundfish and prohibited species catch amounts by this segment of the

groundfish fleet. NMFS concurs in this determination and has approved

the Council's recommended increase in observer coverage for vessels

equal to or greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1

m) LOA. The increase is intended to improve the level of observer

coverage from this size class of vessel without imposing costs that are

disproportionate to the benefits that are anticipated to result from

better inseason management of the groundfish fisheries.

Use of observer data is not limited to inseason management of the

fisheries and compliance monitoring of regulatory programs. Observer

data also are used to assess the status of fishery resources and as a

basis for assessment and development of management measures. NMFS has

released certain observer data to the public under the Freedom of

Information Act for purposes of independent industry analyses of

prohibited species bycatch rates and operational factors that may

reduce bycatch rates of these species. Additional observer data may be

disclosed to support industry initiatives to reduce prohibited species

bycatch rates under a proposed rule published in the Federal Register

January 19, 1994 (59 FR 2817). These Federal and private initiatives to

use observer data for more effective fishery management will be

enhanced to the extent that more observer data are collected from

vessels under 125 ft (38.1 m) LOA as set out in this final rule.

Comment 3. The purpose and intent of the proposed rule to correct

problems encountered by NMFS in administering observer coverage on

vessels equal to or greater than 60 ft (18.3 m) LOA but less than 125

ft (38.1 m) LOA are supported. However, given the direction in which

the fishery management process is progressing, 30 percent coverage for

these vessels likely is inadequate; 100 percent observer coverage on

all vessels capable of carrying an observer should be considered.

Response. One hundred percent observer coverage on vessels equal to

or greater than 60 ft LOA but less than 125 ft LOA has been required

for particular fisheries for specified areas and limited time periods

to meet special management needs (59 FR 3000, January 20, 1994, as

modified at 59 FR 4009, January 28, 1994, and 59 FR 15346, April l,

1994). However, the additional costs associated with 100 percent

observer coverage on all vessels in the groundfish fishery under 125 ft

LOA in all areas at all times would impose disproportionate costs on

this sector of the groundfish fleet and, therefore, are not now

justified under the current open access groundfish management program.

NMFS will continue to assess the need for increased observer coverage

to meet special resource or fishery management needs.

Comment 4. Despite support for the proposed action, concerns remain

about the ability of vessels to manipulate observer coverage in certain

fisheries and/or in certain areas where prohibited species bycatch

rates may be higher. To address these concerns, the final rule should

be amended to require a vessel equal to or greater than 60 ft (18.3 m)

LOA but less than 125 ft (38.1 m) LOA to carry an observer for 30

percent of the days it engages in any particular fishery during any

calendar quarter in which it meets the threshold (3-day) minimum

requirement on a fishery-by-fishery basis.

Response. The final rule limits the manipulation of observer

coverage by decreasing the number of fishing days in a quarter that

trigger observer coverage requirements, basing coverage requirements on

fishing days rather than fishing trip days, and requiring observation

of at least one trip for each fishery that a vessel participates in

during a quarter. These measures should reduce the potential for

manipulation of observer coverage and increase the amount of observer

data available for the management of specific fisheries. Nonetheless,

an opportunity still exists for a vessel operator to manipulate

observer coverage to reduce or increase coverage in different

fisheries.

The EA/RIR/FRFA prepared for this action considered an alternative

for increased observer coverage similar to the one presented in Comment

4. The alternative was more stringent and could provide more observer

data of certain fisheries relative to the preferred alternative

implemented under this final rule. However, this alternative was not

adopted by the Council for several reasons. First, concerns were

expressed that some fishermen would have difficulties complying with 30

percent observer coverage in each fishery because fishermen would need

to be aware of and plan for the target fishery each trip and keep track

of the exact number of fishing days by fishery. Second, 30 percent

coverage by fishery would be relatively more expensive for a vessel in

the 60-125 ft (18.3 m-38.1 m) LOA category to comply with relative to

the preferred alternative. Last, compliance monitoring would be more

difficult and associated enforcement costs would be increased relative

to the preferred alternative under the final rule due to calculations

to check 30 percent observer coverage by fishery.

Comment 5. The proposed action to increase coverage of the longline

fisheries in the eastern GOA is inadequate for two reasons. First, the

proposed action is subject to manipulation. Second, the overall level

of reliable observer-generated data from the hook-and-line gear fleet

in the eastern GOA is deplorable. To respond to these inadequacies, the

final rule should require all vessels in the 60-125 ft (18.3-38.1 m)

LOA category that use hook-and-line gear to carry observers a minimum

of 30 percent of the fishing days they operate in the eastern GOA

during any particular calendar quarter on a fishery-by-fishery basis.

Furthermore, NMFS should make a concerted effort to place observers on

vessels under 60 ft (18.3 m) LOA so that data can be gathered about the

operating characteristics of the small boat fleet that accounts for

most of the hook-and-line harvest in the eastern GOA.

Response. The alternative coverage requirements suggested in

Comment 5 for longline vessels in the eastern GOA was considered by the

Council, but not adopted for reasons similar to those presented in the

response to Comment 4.

The Council considered lowering the size limit for vessels required

to carry observers to vessels less than 60 ft (18.3 m) LOA. The Council

did not adopt this alternative because of increased costs to industry

and increased chance of injury to an observer or crew on small vessels

because of limited working space and accommodations. Under the current

Observer Plan, NMFS has determined that implementation of changes to

the observer coverage requirements for vessels under 60 ft (18.3 m) LOA

would require separate regulatory action. Furthermore, staffing and

budget constraints prevent NMFS from placing employees onboard small

vessels to serve as observers. Given these regulatory and practical

constraints, observer coverage requirements for the small boat fleet

would best be pursued under the North Pacific Fisheries Research Plan,

which is pending approval and implementation by the Secretary.

Comment 6. The proposed action to lower observer coverage on

vessels using pot gear is premature and not supported as long as

observer data generated from the pot gear fisheries are used for

allocative purposes. Data used to support allocative measures should be

based on comparable levels of observer coverage. Therefore, observer

coverage on vessels using pot gear should remain unchanged until an

individual vessel quota system is implemented that will effectively

address resource allocation issues.

Response. Since the implementation of the domestic observer program

in 1990, observer data collected onboard pot gear vessels participating

in a directed fishery for groundfish consistently indicate that

relatively low levels of prohibited species bycatch mortality are

associated with these operations. The Council recommended that NMFS

reduce the observer coverage requirements for pot vessels equal to or

greater than 125 ft (38.1 m) LOA from 100 percent to 30 percent because

of the very low bycatch mortality associated with these operations and

the Council's expressed policy to encourage selective fishing practices

that typically experience low prohibited species bycatch mortality

rates. Under the final rule, the resulting levels of observer coverage

of vessels using pot gear will assure the collection of sufficient

observer data to identify any changes in assumed bycatch mortality

rates and other factors that may affect future resource allocation

issues.

Classification

The FRFA prepared for this rule concluded that it could have

significant effects on a substantial number of small entities (i.e.,

small businesses, small organizations, and small governmental

jurisdictions with limited resources). A copy of the EA/RIR/FRFA

prepared for this action is available (see ADDRESSES).

This final rule has been determined to be not significant for

purposes of E.O. 12866.

List of Subjects in 50 CFR Parts 672 and 675

Fisheries, Reporting and recordkeeping requirements.

Dated: April 22, 1994.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR parts 672 and

675 are amended as follows:

PART 672--GROUNDFISH OF THE GULF OF ALASKA

1. The authority citation for part 672 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In Sec. 672.27, the first sentence of paragraph (a) and

paragraphs (b), (c)(1)(ii)(D) and (c)(1)(iii)(C) and (D) are revised

and paragraphs (c)(1)(ii)(E), (c)(1)(iii)(E), (c)(1)(iii)(F),

(c)(1)(iv) and (c)(1)(v) are added to read as follows:

Sec. 672.27 Observers.

(a) Observer Plan. The operator of a fishing vessel subject to 50

CFR parts 672 and 675, and the manager of a shoreside processing

facility that receives groundfish from a vessel subject to 50 CFR parts

672 and 675, must comply with the Observer Plan. * * *

(b) Purpose. The purpose of this section is to allow observers to

collect Alaska fisheries data deemed by the Regional Director to be

necessary and appropriate for research, management, and compliance

monitoring of fisheries for groundfish, as defined at Sec. 672.2 and

Sec. 675.2 of this chapter, or for other purposes consistent with the

Marine Mammal Protection Act.

(c) * * *

(1) * * *

(ii) * * *

(D) Fishing trip means the time period that starts on the day when

fishing gear is first deployed and ends on the day the vessel offloads

groundfish, returns to an Alaskan port, or leaves the EEZ off Alaska

and adjacent waters of the State of Alaska, and during which one or

more fishing days, as defined in this section, occur.

(E) Fishing day means a 24-hour period, from 0001 A.l.t. through

2400 A.l.t., in which fishing gear is retrieved and groundfish, defined

at Sec. 672.2 or Sec. 675.2 of this chapter, are retained. Days during

which a vessel only delivers unsorted codends to a processor are not

fishing days.

(iii) * * *

(C) A catcher/processor or catcher vessel 125 feet (38.1 meters) in

length overall or longer must carry a NMFS-certified observer at all

times while fishing for groundfish, except for a vessel fishing for

groundfish with pot gear as provided for in paragraph (c)(1)(iii)(F) of

this section.

(D) A catcher/processor or catcher vessel equal to or greater than

60 feet (18.3 meters) length overall but less than 125 feet (38.1

meters) length overall must carry a NMFS-certified observer during at

least 30 percent of its fishing days in each calendar quarter in which

the vessel participates for more than 3 fishing days in a directed

fishery for groundfish. Each vessel that participates for more than 3

fishing days in a directed fishery for groundfish in a calendar quarter

must carry a NMFS-certified observer during at least one fishing trip

during that calendar quarter for each of the groundfish fishery

categories defined under paragraph (c)(1)(iv)(A) through (F) of this

section in which the vessel participates.

(E) A catcher/processor or catcher vessel fishing with hook-and-

line gear that is required to carry an observer under paragraph

(c)(1)(iii)(D) of this section must carry a NMFS-certified observer

during at least one fishing trip in the Eastern Regulatory Area of the

Gulf of Alaska during each calendar quarter in which the vessel

participates in a directed fishery for groundfish in the Eastern

Regulatory Area.

(F) A catcher/processor or catcher vessel equal to or greater than

60 feet (18.3 meters) length overall fishing with pot gear must carry a

NMFS-certified observer during at least 30 percent of its fishing days

in each calendar quarter in which the vessel participates for more than

3 fishing days in a directed fishery for groundfish. Each vessel that

participates for more than 3 fishing days in a directed fishery for

groundfish using pot gear must carry a NMFS-certified observer during

at least one fishing trip during a calendar quarter for each of the

groundfish fishery categories defined under paragraph (c)(1)(iv)(A)

through (F) of this section in which it participates.

(iv) Groundfish fishery categories requiring separate coverage--(A)

Pollock fishery. Fishing that results in a retained amount of pollock,

during any weekly reporting period, that is greater than the retained

amount of any other groundfish species or species group that is

specified as a separate groundfish fishery under this paragraph

(c)(1)(iv) (A) through (F).

(B) Pacific cod fishery. Fishing that results in a retained amount

of Pacific cod, during any weekly reporting period, that is greater

than the retained amount of any other groundfish species or species

group that is specified as a separate groundfish fishery under this

paragraph (c)(1)(iv) (A) through (F).

(C) Sablefish fishery. Fishing that results in a retained amount of

sablefish, during any weekly reporting period, that is greater than the

retained amount of any other groundfish species or species group that

is specified as a separate groundfish fishery under this paragraph

(c)(1)(iv) (A) through (F).

(D) Rockfish fishery. Fishing that results in a retained aggregate

amount of rockfish of the genera Sebastes and Sebastolobus, during any

weekly reporting period, that is greater than the retained amount of

any other groundfish species or species group that is specified as a

separate groundfish fishery under this paragraph (c)(1)(iv) (A) through

(F).

(E) Flatfish fishery. Fishing that results in a retained aggregate

amount of all flatfish species, except Pacific halibut, during any

weekly reporting period, that is greater than the retained amount of

any other groundfish species or species group that is specified as a

separate groundfish fishery under this paragraph (c)(1)(iv) (A) through

(F).

(F) Other species fishery. Fishing that results in a retained

amount of groundfish, during any weekly reporting period, that does not

qualify as a pollock, Pacific cod, sablefish, rockfish, or flatfish

fishery as defined under paragraphs (c)(1)(iv) (A) through

(c)(1)(iv)(E) of this section.

(v) Assignment of vessels to fisheries. During any weekly reporting

period, the retained catch composition of groundfish species or species

groups of a vessel for which a TAC has been specified under Sec. 672.20

or Sec. 675.20 of this chapter, in round-weight equivalents, will

determine to which of the fishery categories listed under paragraph

(c)(1)(iv) (A) through (F) of this section the vessel is assigned.

(A) A catcher/processor vessel will be assigned to fishery

categories at the end of each weekly reporting period based on the

round-weight equivalent of the retained groundfish catch composition

included in the weekly production report for the vessel submitted to

the Regional Director under Sec. 672.5(c)(2) or Sec. 675.5(c)(2) of

this chapter.

(B) A catcher vessel that delivers to mothership processors in

Federal waters during a weekly reporting period will be assigned to

fishery categories based on the round-weight equivalent of the retained

groundfish catch composition included in the weekly production report

for the mothership submitted to the Regional Director for that week

under Sec. 672.5(c)(2) or Sec. 675.5(c)(2) of this chapter.

(C) A catcher vessel that delivers groundfish to shoreside

processors or to mothership processors in Alaska State waters during a

weekly reporting period will be assigned to a fishery category based on

the round-weight equivalent of the groundfish delivered to processors

during that weekly reporting period and reported on one or more Alaska

Department of Fish and Game fish ticket or tickets as required under

Alaska State regulations at A.S. 16.05.690.

* * * * *

PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA

3. The authority citation for 50 CFR part 675 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

4. Section 675.25 is revised to read as follows:

Sec. 675.25 Observers.

Observer requirements authorized under the Observer Plan are set

out at Sec. 672.27 of this chapter.

[FR Doc. 94-10195 Filed 4-28-94; 8:45 am]

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