Pacific Coast Groundfish Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 663

[Docket No. 940254-4104; I.D. 012894A]

RIN 0648-AF95

Pacific Coast Groundfish Fishery

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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

SUMMARY: NMFS issues this final rule to allocate annually the U.S.

Pacific whiting harvest guideline or quota, in 1994 through 1996,

between fishing vessels that either catch and process at sea or catch

and deliver to at-sea processors, and fishing vessels that deliver to

processors located on shore. In each of the 3 years, after 60 percent

of the annual harvest guideline (or quota) for whiting is taken,

further at-sea processing in the exclusive economic zone (EEZ) will be

prohibited. The remaining 40 percent (104,000 metric tons (mt) in 1994)

will be reserved initially for fishing vessels that deliver to shore-

based processors. On or about August 15, any amount of the harvest

guideline (including any part of the 40 percent initially held in

reserve) that is determined by the Director, Northwest Region, NMFS,

not to be needed by the shoreside sector during the remainder of the

year will be made available to the at-sea processing sector. This

action is intended to promote the goals and objectives of the Pacific

Coast Groundfish Fishery Management Plan (FMP) by equitably sharing the

harvest guideline between shore-based and at-sea processors, by

contributing to the economies of coastal communities by providing

reasonable opportunity for shoreside processing of the whiting harvest

guideline, and by promoting stability in the West Coast fishing

industry by diverting effort from other fully utilized fisheries.

EFFECTIVE DATES: April 8, 1994 through December 31, 1996.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact

Review (EA/RIR) can be obtained from the Pacific Fishery Management

Council, 2000 SW First Avenue, suite 420, Portland, OR 97201.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140,

or Rodney R. McInnis at 310-980-4030.

SUPPLEMENTARY INFORMATION: NMFS issues this final rule to implement a

recommendation from the Pacific Fishery Management Council (Council)

for a 3-year framework to allocate the annual Pacific whiting harvest

guideline or quota between the shoreside and at-sea industry sectors.

The background, problem, and Council recommendation were fully

described in the notice of proposed rulemaking for this action (58 FR

8896, February 24, 1994). Public comments were requested through March

21, 1994. Eleven letters were received and are addressed later in the

preamble to this final rule. The comments resulted in no change to the

regulatory text of the proposed rule.

In summary, the problems the Council identified and is seeking to

solve are: Too much fishing and processing capacity and not enough

fish, inequitable distribution of economic benefits among the competing

sectors, and regulatory instability that has prevented the industry

from making timely business decisions.

To resolve these problems, the Council identified the following

priorities: (1) Ensure that the shore-based sector has reasonable

opportunity to participate; (2) foster stability of the shore-based

processing sector by providing replacement revenues for other faltering

fisheries; (3) help stabilize faltering rural coastal economies by

providing fishing, processing, and supporting industry revenues to

replace income declines in other industries; (4) achieve maximum net

benefit to the Nation by putting economic benefits directly into

coastal communities and distributing income impacts/benefits along

traditional geographic paths; (5) spread the fishery over time and

area, reducing potential pulse fishery impacts on whiting, salmon, and

rockfish stocks; (6) prevent effort shift to other species; (7) address

management of the entire groundfish resource rather than piecemeal; (8)

contribute to increased long-term product yield and employment

opportunities by spreading harvest over a longer season; and (9)

discourage additional capital investment in harvesting or processing

facilities.

The Council convened an ad hoc industry subcommittee in July 1993

in Portland, Oregon, to develop an allocation option that would be

acceptable to all sectors. The subcommittee included a representative

from each major sector in the whiting industry: Catcher vessels

delivering at-sea, shoreside, and ``at-large''; shoreside processors;

catcher/processors; and mothership processors. The ad hoc committee,

after considering a number of alternatives, successfully negotiated a

3-year agreement that was acceptable to all participants, and

subsequently was adopted by the Council and recommended to NMFS.

The Council recommended that the first 60 percent of the annual

whiting harvest guideline be available to all vessels in open

competition with the remaining 40 percent reserved initially for shore-

based activities. The Council recommended that after 60 percent has

been harvested, no further at-sea processing be allowed for the

remainder of the year or until August 15, when an additional portion of

the harvest guideline would be made available pursuant to a NMFS

assessment of how much of the harvest guideline will be utilized by

shore-based processors during the remainder of the year. Any surplus to

shore-based needs would be made available to all permitted vessels on

or as soon as practicable after August 15. The Council recommended that

the allocation scheme remain in effect for 3 years, 1994-1996. Any

Pacific whiting harvested or processed in state ocean waters (0-3

nautical miles offshore) will be counted toward the EEZ limits.

Additional Releases

In the preamble to the proposed rule, comments were requested

regarding the advisability of a second release of whiting after August

15 if necessary to ensure full utilization of the resource. The only

comments relevant to the release date preferred a single release on

October 15 rather than August 15 (see comment 6 below). A single

release has been preferred by the industry in the past because of the

confusion and logistical difficulties associated with multiple

openings. NMFS agrees with the industry in preferring a single release,

but recognizes that making accurate projections of shore-based needs is

difficult. If it becomes obvious, after August 15, that shore-based

needs have been substantially over-estimated, NMFS may release whiting

at a later date, but only after consultation with the Council and only

to ensure full utilization of the resource. The regulatory text at

Sec. 663.23(b)(4)(ii), which authorizes the release of whiting as soon

as practicable after August 15, has been revised to authorize

additional reserve releases.

Comments and Responses

The comments in 11 letters received during the public comment

period ending March 21, 1994, are summarized below. Three letters

opposed all or part of the proposed rule, and eight supported it.

Comments Opposing the Proposed Rule

Comment 1: The allocation is not equitable--the benefits and

burdens must be shared fairly. The shoreside reserve of 40 percent

(104,000 mt in 1994) is too high, particularly since the shore-based

industry has processed only about half this amount in its highest year.

One commenter preferred a shoreside reserve of 35 percent. Another

preferred allocations to be based on actual, demonstrated performance.

Response: The Council's recommendation is a negotiated compromise

that enables two sectors with differing operating needs to co-exist.

The Council's industry subcommittee agreed to the use of a percentage

allocation that benefits each sector when the harvest guideline is high

and burdens each sector when it is low. In the preamble to the proposed

rule, NMFS agreed that the benefit of an increased harvest guideline,

as occurs in 1994, should be equitably shared between the at-sea and

shore-based sectors, particularly since it is not expected to result in

increased capitalization of either sector. The relatively high harvest

guideline in 1994 results in the shore-based reserve for that year

being higher than previous catch levels. If the entire reserve is not

needed by the shoreside sector, the surplus will be released,

increasing the amount available for processing at sea.

The percentage level of the shoreside reserve was debated at great

length within the industry subcommittee. A 35-percent level was

considered, but was not supported by the subcommittee. NMFS believes

the 40-percent level recommended by the Council is reasonable.

Comment 2: The proposed rule fails to consider that, in the past,

shoreside performance has fallen short of its preseason processing

estimates.

Response: This final rule sets the shore-based reserve at 40

percent, and is not dependent on an annual preseason processing

estimate. Whiting surplus to shoreside needs will be made available for

at-sea processing to assure that the resource is fully utilized. If the

harvest guideline declines, the shoreside reserve may be more in line

with past performance levels.

Comment 3: The statement in the preamble to the proposed rule that

each sector has the capacity to take a substantial portion, if not all,

of the harvest guideline is inconsistent with the statement in the

preamble to the proposed rule that the shore-based sector will have the

opportunity to take more than double its historical catch.

Response: The statements in the proposed rule preamble are not

inconsistent. They acknowledge that the historical shoreside catch has

not reached what is believed to be existing shoreside capacity. As

explained in the response to comment 1, the 1994 shoreside reserve is

higher than past performance in part due to the large increase in the

whiting harvest guideline and the application of a fixed percentage to

that harvest guideline.

Comment 4: The analysis accompanying the rule assumes that the at-

sea fleet is not a participant in the fishery.

Response: NMFS disagrees. The EA/RIR contains substantial

information regarding recent operations by the at-sea processing fleet.

However, the level of participation by that fleet under the limited

entry program, which was implemented on January 1, 1994, and under

various allocation options, still is not known with certainty. The

limited entry fishery established a window period and certain

requirements that must be met for a vessel to receive an initial

limited entry permit. Most, if not all, catcher/processors did not meet

the qualifications. They are treated the same as other non-qualifying

vessels that operated in the groundfish fishery after the window

period. The number and types of vessels that would attempt to acquire

limited entry permits were unknown at the time the analytical documents

were prepared. However, reasonable assumptions were made and catcher/

processor participation was considered.

Comment 5: The commenter disagreed with the statement that ``the

Council is concerned about the impacts on traditional fishermen and the

rural coastal communities where they reside, focusing on those

displaced by Americanization of joint venture fisheries.''

Response: This statement in the proposed rule reflects the

Council's position as it appears in the EA/RIR. NMFS acknowledges that

Americanization of the whiting fishery, as contemplated under the

Magnuson Fishery Conservation and Management Act (Magnuson Act),

provided additional employment in the domestic processing sector. It

also resulted in displacement of those whiting catcher vessels that had

delivered to foreign processing vessels but could not find alternative

domestic markets.

Comment 6: Two commenters, one representing the majority of at-sea

processing vessels, stated that any release of surplus shoreside

reserve should not be made until October 15, after the end of the

pollock ``B'' season in Alaska.

Response: NMFS has not changed the August 15 release date that was

part of the negotiated agreement by the industry subcommittee and

recommended by the Council. This date was selected because it provided

an equal opportunity for participation by vessels in the at-sea

processing fleet, particularly smaller catcher vessels delivering to

motherships, to operate before weather deteriorates or whiting migrate

north to Canadian waters. A later release could disproportionately

benefit catcher/processors that are larger and more capable of fishing

successfully in rough weather. With an August 15 release, both

mothership and catcher/processor operations would have an opportunity

to participate, but may have to choose between the pollock ``B'' season

or the whiting fishery. With some vessels choosing to fish in Alaska,

effort in the whiting fishery in August would be lower than in the

spring, which, given the lower amount of whiting that may be available,

would support an orderly fishery.

Comments Supporting the Proposed Rule: Eight letters from the

shore-based fishing and processing sector were received in favor of the

proposed rule. The letters supported the negotiated agreement that

recognizes the differences in shore-based and at-sea operations, allows

each sector to operate at its maximum efficiency levels, and provides

increased stability to coastal communities and the fishing industry. A

comment also was received from an organization representing at-sea

processors that supported the 40-percent reserve for the shore-based

sector. However, as summarized above, this organization did not agree

with the release date or with some of the statements in the proposed

rule.

Response: None required.

Clarification

This final rule also revises an incorrect cross-reference at

Sec. 663.7, which should read Sec. 663.23(b)(4)(iv). This revision was

stated correctly in the regulatory text of the proposed rule, but

incorrectly in the preamble.

Classification

This final rule has been determined to be ``not significant'' for

purposes of Executive Order 12866.

This final rule is published under the authority of the Magnuson

Act, 16 U.S.C. 1801 et seq. The Assistant Administrator for Fisheries,

NOAA (AA), has determined that it is necessary for management of the

Pacific Coast groundfish fishery and that it is consistent with the

Magnuson Act and other applicable law.

The AA finds good cause under section 553(d)(3) of the

Administrative Procedure Act to make this rule effective upon filing at

the Office of the Federal Register. If this rule is not effective on

April 15, 1994, the date that the at-sea processing fleet may begin

operations, or shortly thereafter, preemption of the shoreside

processing sector by the at-sea sector would be a real possibility.

Therefore, delaying the effective date of this rule for 30 days is

contrary to the public interest.

List of Subjects in 50 CFR Part 663

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: April 8, 1994.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 663 is amended

as follows:

PART 663--PACIFIC COAST GROUNDFISH FISHERY

1. The authority citation for part 663 continues to read as

follows:

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

Sec. 663.7 [Amended]

2. In Sec. 663.7, paragraph (o), reference to ``Sec. 663.23(b)(v)''

is revised to read ``Sec. 663.23(b)(4)(iv)''.

3. In Sec. 663.23, paragraph (b)(4) is added to read as follows:

Sec. 663.23 Catch restrictions.

* * * * *

(b) * * *

(4) Pacific whiting--allocation. The following provisions apply

1994 through 1996--

(i) The shoreside reserve. When 60 percent of the annual harvest

guideline for Pacific whiting has been or is projected to be taken,

further at-sea processing of Pacific whiting will be prohibited

pursuant to paragraph (b)(4)(iv) of this section. The remaining 40

percent of the harvest guideline is reserved for harvest by vessels

delivering to shoreside processors.

(ii) Release of the reserve. That portion of the annual harvest

guideline that the Regional Director determines will not be used by

shoreside processors by the end of that fishing year shall be made

available for harvest by all fishing vessels, regardless of where they

deliver, on August 15 or as soon as practicable thereafter. NMFS may

again release whiting at a later date if it becomes obvious, after

August 15, that shore-based needs have been substantially over-

estimated, but only after consultation with the Council and only to

insure full utilization of the resource.

(iii) Estimates. Estimates of the amount of Pacific whiting

harvested will be based on actual amounts harvested, projections of

amounts that will be harvested, or a combination of the two. Estimates

of the amount of Pacific whiting that will be used by shoreside

processors by the end of the fishing year will be based on the best

information available to the Regional Director from state catch and

landings data, the survey of domestic processing capacity and intent,

testimony received at Council meetings, and/or other relevant

information.

(iv) Announcements. The Assistant Administrator will announce in

the Federal Register when 60 percent of the Pacific whiting harvest

guideline has been, or is about to be, harvested, specifying a time

after which further at-sea processing of Pacific whiting in the fishery

management area is prohibited. The Assistant Administrator will

announce in the Federal Register any release of the reserve. In order

to prevent exceeding the limits or underutilizing the resource,

adjustments may be made effective immediately by actual notice to

fishermen and processors, by phone, fax, Northwest Region computerized

bulletin board (contact 206-526-6128), letter, press release, and/or

U.S. Coast Guard Notice to Mariners (monitor channel 16 VHF), followed

by publication in the Federal Register, in which instance public

comment will be sought for a reasonable period of time thereafter. If

insufficient time exists to consult with the Council, the Regional

Director will inform the Council in writing of actions taken.

* * * * *

[FR Doc. 94-8923 Filed 4-8-94; 4:39 pm]

BILLING CODE 3510-22-P