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

Federal RegisterApr 20, 1994

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DEPARTMENT OF COMMERCE

50 CFR Parts 672 and 675

[Docket No. 940102-4106; I.D. 122293D]

RIN 0648-AF17

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 announces the approval of Amendment 25 to the Fishery

Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and

Aleutian Islands Area (BSAI) and issues final regulations to implement

the amendment that eliminates the primary Pacific halibut prohibited

species catch (PSC) limit established for BSAI trawl fisheries. NMFS

also issues final regulations that prohibit the discard of salmon taken

as bycatch in the BSAI groundfish trawl fisheries until the number of

salmon has been determined by a NMFS-certified observer, and authorizes

the release of vessel-specific observer data on bycatch of prohibited

species in the BSAI and Gulf of Alaska (GOA) groundfish fisheries. This

action is necessary to manage effectively the halibut PSC limit

established for BSAI trawl fisheries and to provide better information

on salmon and other prohibited species bycatch. This action is intended

to promote management and conservation of groundfish and other fish

resources and to further the objectives contained in the FMP for the

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

EFFECTIVE DATE: May 20, 1994.

ADDRESSES: Copies of Amendment 25 and the environmental assessment/

regulatory impact review (EA/RIR) may be obtained from the North

Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK

99510; telephone: 907-271-2809.

FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

Fishing for groundfish by U.S. vessels in the exclusive economic

zone 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 (16 U.S.C. 1801 et seq.)

(Magnuson Act), and are implemented by regulations governing the U.S.

groundfish fisheries at 50 CFR parts 672 and 675. General regulations

that also pertain to U.S. fisheries are codified at 50 CFR part 620.

This action implements Amendment 25 to the FMP for the Groundfish

Fishery of the BSAI, which eliminates the primary halibut PSC limit

established for the BSAI groundfish trawl fisheries. This action also

implements regulatory amendments that: (1) Prohibit the discard of

salmon taken as bycatch in the BSAI groundfish trawl fisheries until a

NMFS-certified observer has determined the number of salmon and

completed the collection of any scientific data or biological samples

from the salmon; and (2) authorize the release of vessel-specific

observer data on bycatch of prohibited species in the BSAI and GOA

groundfish fisheries.

A notice of availability of Amendment 25 was published in the

Federal Register on December 29, 1993 (58 FR 68848), and invited

comment on the amendment through February 22, 1994. No written comments

were received. A proposed rule to implement Amendment 25 and the

regulatory amendments referenced above was published in the Federal

were invited through February 28, 1994. Five letters providing 15

comments were received that are summarized in the Response to Comments

section, below.

Amendment 25 was approved by the Secretary on March 25, 1994, under

section 304(b) of the Magnuson Act. Upon reviewing the amendment, the

comments on the proposed rule to implement it and the two proposed

regulatory amendments, NMFS has determined that this final rule

implementing the following measures is necessary for fishery

conservation and management:

1. Elimination of the primary PSC limit established for the BSAI

groundfish trawl fisheries that, when reached, required NMFS to close

bycatch limitation zones 1 and 2H of the Bering Sea. This action does

not affect the overall halibut bycatch mortality limit (3,775 metric

tons) established for the BSAI trawl gear fisheries.

2. Prohibit the discard of salmon taken as bycatch in the BSAI

groundfish trawl fisheries until a NMFS-certified observer has

determined the number of salmon and completed the collection of any

scientific data or biological samples from the salmon.

3. Establishment of regulatory authority to release to the public

vessel-specific observer data on bycatch of prohibited species in the

BSAI and GOA groundfish fisheries. On a weekly basis, the following

observer data are authorized for release by NMFS for each vessel

participating in a directed fishery for Alaska groundfish:

1. The name and Federal permit number of the vessel;

2. The observed number of chinook salmon and other salmon taken by

the vessel;

3. The observed vessel bycatch rates of Pacific halibut, Pacific

herring, king crab, and Chionoecetes bairdi Tanner crab;

4. The number of observed trawl hauls or fixed gear sets;

5. The number of trawl hauls that were basket sampled; and

6. The total weight of basket samples taken from sampled trawl

hauls.

NMFS could also make available to the public the following observer

data collected in the Alaska groundfish trawl fisheries other than for

rockfish, Greenland turbot, or Atka mackerel. These data would not be

identified by vessel and would include the following for each observed

haul:

1. Date;

2. Time of day gear is deployed;

3. Latitude and longitude at beginning of haul;

4. Bottom depth;

5. Fishing depth of trawl;

6. Rate chinook salmon (number of chinook salmon/mt groundfish);

7. Rate other salmon (number of other salmon/mt groundfish);

8. Rate Pacific halibut (kg halibut/mt groundfish;

9. Rate Pacific herring (kg herring/mt groundfish);

10. Rate king crab (number of crab/mt groundfish);

11. Rate C. bairdi Tanner crab (number of crab/mt groundfish);

12. Sea surface temperature (where available); and

13. Sea temperature at fishing depth of trawl (where available).

The intent of the measures implemented under this action is to

eliminate the primary halibut bycatch mortality limit as a halibut

bycatch management measure, provide better information to management

agencies and the public on salmon and other prohibited species bycatch,

and support independent industry initiatives to address the prohibited

species bycatch problem. Further explanation of, and reasons for, these

measures are contained in the preamble to the proposed rule (59 FR

2817, January 19, 1994).

Changes in the Final Rule From the Proposed Rule

This final rule includes the following changes from the proposed

rule: These changes are described as follows.

1. Section 672.7(h) and Sec. 675.7(o) are redesignated as

Sec. 672.7(o) and Sec. 675.7(p), respectively, to accommodate other

recently implemented regulations.

2. Regulatory language at Sec. 675.20(c)(6) has been clarified to

set out NMFS's intent to allow observers to use NMFS guidelines for an

estimate of the number of retained salmon when time constraints or

other duties prevent an observer from counting each fish. Specifically,

the phrase ``until all salmon have been counted by a NMFS-certified

observer'' has been revised to read ``until the number of salmon has

been determined by a NMFS-certified observer''. Accordingly, regulatory

text at Sec. 672.7(n) and Sec. 675.7(o) has been changed.

3. In Sec. 675.20, paragraphs (c)(6)(ii) through (iv) are

redesignated as paragraphs (c)(6)(i)(A) through (C), respectively, and

paragraphs (c)(6)(v) through (vii) are redesignated as paragraphs

(c)(6)(ii) through (iv), respectively. Redesignated paragraph

(c)(6)(i)(A) is revised to require operators of vessels carrying

observers onboard, and whose fishing operations allow for sorting of

catch, to retain salmon from different hauls separately and in a manner

that identifies the haul from which the salmon were taken. This action

is taken in response to public comment that salmon from different hauls

should be counted separately to determine possible correlations between

haul characteristics and salmon bycatch rates. This revision to

regulatory text will provide NMFS with data that could be used to

assess observed salmon bycatch rates when other than whole-haul

sampling is used by the observer.

4. Regulatory text at Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is

revised to include the authority to release to the public observer data

on the number of trawl hauls or fixed gear sets observed onboard a

vessel during a weekly reporting period, the number of trawl hauls that

were basket sampled, and the total weight of basket samples taken from

sampled hauls. This action is taken to respond to public comment

received on the proposed rule that observed bycatch rates based on

small sample sizes often can be misleading.

5. Regulatory text at Sec. 672.27(g)(2) and Sec. 675.27(g)(2) is

revised to clarify NMFS intent that the observer data collected for

individual hauls and authorized for release to the public will not be

identified by vessel name or other information that identifies the

vessel from which the data were collected.

Response to Comments

Five letters of comments were received within the comment period

that ended February 28, 1994. All the letters supported regulations

implementing Amendment 25 that eliminate the primary halibut PSC limit

for the BSAI trawl gear fisheries. A summary of comments on the

regulatory amendments and NMFS's response follows.

Comment 1. Any action is supported that contributes to the

reduction of prohibited species bycatch rates and optimal management of

prohibited species bycatch in all North Pacific fisheries. One means of

achieving this goal is better collection and assessment of data

generated by the NMFS Observer Program. Retention is an important first

step to accurate assessment of salmon bycatch. In addition, NMFS is

encouraged to investigate the accuracy of estimating prohibited species

catch in groundfish catches using whole-haul versus basket sampling

methods.

Response. NMFS concurs that additional information on salmon

bycatch is desirable and necessary to develop future management actions

to address the salmon bycatch problem in the Alaska groundfish trawl

fisheries. Accordingly, NMFS has approved this final rule to meet this

need. NMFS intends to use the additional data on salmon bycatch

collected under this final rule to assess the quality of salmon bycatch

rate estimates derived from existing observer sampling procedures and

to provide additional information with which to assess the magnitude of

salmon bycatch in the Alaska trawl fisheries.

Comment 2. Proposed regulations prohibiting the discard of salmon

taken in BSAI groundfish trawl fisheries until the number of salmon is

determined by a NMFS-certified observer also should apply to GOA trawl

fisheries. Salmon bycatch rates in the GOA trawl fisheries often equal

or exceed those in the Bering Sea, and vessels in the GOA typically

operate with less observer coverage than their BSAI counterparts.

Response. NMFS acknowledges that the salmon bycatch problem extends

to the GOA trawl fisheries. However, the Council did not consider

extending salmon retention criteria to the GOA trawl fisheries, and the

supporting analyses presented to the Council did not address this

alternative. The Council's request to NMFS to prepare rulemaking to

implement mandatory retention of salmon until counted by an observer

was based on issues associated with chinook salmon bycatch in the BSAI

trawl fisheries and independent industry initiatives to address the

chinook salmon bycatch problem in these fisheries. Council support for

the BSAI program was reinforced after its consideration of the high

bycatch amounts of chum salmon estimated for the BSAI pollock fishery

during the 1993 non-pollock roe or ``B'' season.

Relative to the BSAI trawl fleet, the GOA fleet typically comprises

smaller vessels with less observer coverage. Therefore, monitoring

compliance with mandatory salmon retention requirements would be more

difficult. Fewer GOA processors are required to have 100-percent

observer coverage relative to BSAI processing operations, because of

the smaller volume of groundfish processed on a monthly basis. As a

result, GOA processors would tend to incur greater relative costs

associated with retaining and freezing salmon until an observer becomes

available to count retained fish.

If the BSAI program is determined to be effective in collecting

additional information on salmon bycatch, and the Council wishes to

expand this program to the GOA trawl fisheries, NMFS could initiate

separate rulemaking to extend the salmon retention program to the GOA.

Comment 3. The intent of the proposed regulatory language at

Sec. 675.20(c)(6)(vii) is unclear. This language states that all salmon

must be returned to Federal waters immediately, with a minimum of

injury, following notice by a NMFS-certified observer that salmon have

been counted and the collection of any scientific data or biological

samples has been completed. Why is the term ``minimum of injury'' used

when all retained salmon likely are dead? What is a reasonable

definition of the term ``immediately'' for salmon that have been in

frozen storage at a shoreside facility awaiting the arrival of an

observer? Can a vessel transport another vessel's salmon bycatch back

out to Federal waters? After they have been counted by an observer, can

salmon be disposed of by sending them to a meal plant?

Response. The FMPs currently state that all prohibited species must

be returned to the sea with a minimum of injury except when their

retention is authorized by other applicable law. NMFS recognizes that

the rationale for existing standards that require prohibited species be

returned to the sea with a ``minimum of injury'' becomes questionable

for those prohibited species that obviously are dead, such as salmon

delivered to shoreside processors for counting by a NMFS-certified

observer. NMFS believes that this issue is not unique to salmon

bycatch, and that other prohibited species often are landed shoreside

by those vessel operators whose fishing operations do not allow for

effective sorting of catch at sea. At this time, processors are not

allowed to dispose of prohibited species by sending them to meal

plants. Meal ultimately is produced for commercial sale, and existing

regulations are intended to prevent the commercial sale of prohibited

species. Federal regulations could be amended to allow the grinding of

prohibited species so they could be more easily disposed of in a manner

similar to other fish waste under discharge permits issued to

processors under the Clean Water Act. NMFS believes that rulemaking

authorizing this manner of disposal of salmon delivered to processors

in State waters should be considered for all prohibited species, not

just salmon. A comprehensive approach for assessing and revising

guidelines for disposal of prohibited species is outside the scope of

this regulatory action. Therefore, until rulemaking is initiated to

revise disposal guidelines for all prohibited species, NMFS has

determined to maintain the proposed regulatory guidelines for disposal

of salmon after the number of salmon have been determined by a NMFS-

certified observer.

Under this final rule, salmon retained and delivered to a processor

by one vessel subsequently can be loaded on to another vessel for

discard in Federal waters. For purposes of clarifying

Sec. 675.20(c)(iv), the term ``immediately'' has been changed to ``as

soon as is practicable'' to better express NMFS's intent for the

disposal of retained salmon.

Comment 4. Approved methods of disposing of salmon after the number

of salmon have been determined by an observer should include

distribution to foodbanks through authorized nonprofit organizations.

Response. The authority to retain salmon taken as bycatch in the

Alaska groundfish trawl fisheries for delivery to an authorized

distributor for nonprofit foodbank organizations is beyond the scope of

this action. The Council has requested that NMFS prepare an analysis of

alternatives for a program that would allow retention of salmon for

delivery to nonprofit foodbank organizations. The Council is scheduled

to consider this analysis at its April 1994 meeting.

Comment 5. The authority for public release of observer data on

vessel name and prohibited species bycatch amounts or rates at

Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is supported, but should be

expanded to include observer data on the number of tows sampled onboard

a vessel during a weekly reporting period, the number of tows that were

basket sampled or whole-haul sampled, and the total sample weight of

basket samples. This is important, because bycatch rates based on small

sample sizes often can be misleading.

Response. NMFS concurs. The requested observer data can be provided

inseason and has been added to Sec. 672.27(g)(1) and Sec. 675.25(g)(1)

as information that may be released to the public on a weekly basis

under vessel name. NMFS has further revised the final rule to clarify

that the authority to release these data applies to both trawl and

fixed gear fisheries.

Comment 6. The authority for public release of haul-by-haul data

authorized at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) should be

expanded to include the fixed gear fisheries in the GOA and BSAI.

Response. The intent of the regulatory amendment implemented under

the referenced regulations is to address the salmon bycatch problem in

the Alaska trawl fisheries, although the data authorized for release

also will benefit an assessment of the bycatch problem for other

prohibited species. The trawl industry petitioned NMFS for the release

of these data outside of the Council process, and NMFS agreed to

include in the proposed rule the authority to release these data to

support independent initiatives by the trawl industry to better define

the salmon bycatch problem and to take action to address it.

The release of observer data on haul position and depth posed some

concern to members of the trawl industry, because of the potential for

competitive harm. Ultimately, representatives of the trawl industry

attempted to address this concern by requesting that NMFS not release

these data for those fisheries that are geographically specific in

nature, involve a small number of participants, and have relatively

small quotas.

NMFS has approved the authority to release vessel names, bycatch

amounts of salmon, and bycatch rates of other prohibited species on a

weekly basis for all observed vessels, including those participating in

the fixed gear fisheries. However, representatives for the fixed gear

fisheries have not petitioned NMFS for the release of observer data for

individual sets. Given the potential for competitive harm that could

result from the release of observer data on the position and depth of

individual sets in the hook-and-line, pot, or jig gear fisheries, NMFS

believes that separate regulatory action to implement the authority to

release these data should be developed in consultation with the Council

and affected industry members.

Comment 7. The requirement that all salmon taken as bycatch in the

BSAI groundfish trawl fisheries be retained until an observer has

counted each fish and collected appropriate scientific or biological

samples is supported. No data are available to suggest this requirement

would increase salmon bycatch mortality, and it is an essential step in

developing reliable data concerning the actual number of salmon taken

as bycatch in the trawl fisheries and identifying the stocks of origin

of salmon taken as incidental catch. The retention procedure should

require observed vessels whose operations allow sorting to store salmon

in separate bins on a haul-by-haul basis and to identify the haul(s) to

which the bin(s) relate. This procedure is necessary to determine

possible correlations between haul characteristics and salmon bycatch

rates.

Response. NMFS concurs and has revised the final rule to require

operators of observed vessels whose operation allows sorting of catch

to store salmon from different hauls separately and to identify for the

observer those hauls associated with retained salmon. In addition to

being necessary for assessing possible correlations between haul

characteristics and salmon bycatch rates, this requirement will provide

data that could be used by NMFS to assess observed salmon bycatch rates

when other than whole-haul sampling is used by the observer.

Comment 8. Any exemption for processors not carrying observers from

the requirement of retaining salmon until the number of salmon is

determined by a NMFS-certified observer is opposed. If NMFS concludes

that such exemptions may be necessary, they should be made available by

the Director, Alaska Region, NMFS (Regional Director), on a case-by-

case basis, upon a showing by the processor that the requirement would

result in undue expense or difficulty, and that the fisheries served by

the processor have a low salmon bycatch rate.

Response. In 1992 and 1993, the pollock fisheries accounted for 91

percent and 97 percent, respectively, of the total salmon bycatch in

the BSAI trawl fisheries. Mothership and shoreside processors receiving

pollock from vessels participating in this fishery typically are large

operations that process a high volume of fish. In 1993, 13 mothership

and shoreside processors participated in the pollock fishery during at

least 1 week. Twelve of these processors received over 500 mt of

groundfish during the months that they participated in the pollock

fishery and were required to obtain either 30-percent or 100-percent

observer coverage. One processor received less than 500 mt of

groundfish during the single month it participated in the pollock

fishery and was exempt from observer coverage. This processor accounted

for less than .003 percent of the total pollock harvest.

Processors that receive less than 500 mt of groundfish during a

month may never be required to obtain observer coverage during a year

if they maintain monthly groundfish processing at this low level. Given

that unobserved processors accounted for less than 1 percent of the

1993 pollock catch and that 97 percent of the 1993 salmon bycatch

occurred in the pollock fishery, NMFS maintains that providing

authority to the Regional Director to exempt these processors is not

necessary because these processors are not now observed. If the Council

determines in the future that small mothership and shoreside operations

should be subject to observer requirements, then a separate regulatory

amendment can be initiated to increase observer coverage requirements

for these operations.

Pending approval of the proposed North Pacific Fisheries Research

Plan adopted by the Council at its June 1992 meeting, observer coverage

requirements will be determined annually under regulations implementing

the second year of the Research Plan, currently scheduled for 1996. If

necessary, an increase in observer coverage of small processing

operations could be considered under this annual process to obtain

additional data on salmon bycatch associated with these operations.

Comment 9. No circumstances likely exist under which release of

haul-by-haul observer data listed in the proposed rule for the Alaska

trawl fisheries other than for rockfish, Greenland turbot, and Atka

mackerel could reasonably be expected to cause substantial competitive

harm. Fisheries other than those identified generally take place on

well-known fishing grounds, and at times of the year when a substantial

portion of the trawl fleet is fishing. Because release of information

concerning target species catch per unit of effort is not proposed for

release, it is highly unlikely that knowledge of individual haul

locations or bycatch rates would result in competitive harm to the

party providing the information. In the rare circumstance where that

may be possible, the proposed petition procedure should provide

adequate protection.

Response. Consistent with procedures set out at 15 CFR 4.7(h) for

the disclosure of commercial or financial information, NMFS has

approved regulations for the release to the public of observer data

collected onboard trawl vessels participating in a directed fishery for

groundfish other than Greenland turbot, rockfish, or Atka mackerel. In

taking this action, NMFS has acknowledged that the disclosure of

observer data on prohibited species bycatch and associated haul

location and depth information could possibly be expected to divulge

information on specific fishing operations in a manner that would

result in substantial competitive harm.

Comment 10. The authority for public release of haul-by-haul

observer data listed at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) of the

proposed rule should be expanded to include the Greenland turbot trawl

fishery, given the serious problem with halibut bycatch experienced in

this fishery. The proposed regulation does not require the release of

data from all fisheries to which it applies. If there is no consensus

that data from a particular fishery should be released, the Regional

Director can weigh objections and act accordingly. It is thus

appropriate to structure the authority rather broadly at this time to

avoid having to initiate new rulemaking on a fishery-by-fishery basis.

Response. NMFS has acknowledged that the release of observer data

on a haul-by-haul basis could divulge information on specific fishing

operations in a manner that would result in substantial competitive

harm. Except as provided by pre-notification procedures set out at 15

CFR 4.7(h), commercial or financial information cannot be released

under the Freedom of Information Act (5 U.S.C. 552(b)(4)). The

regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) satisfy this

pre-notification procedure, except for the Greenland turbot, Atka

mackerel and rockfish fisheries. At the request of representatives for

the Alaska groundfish trawl industry, these exceptions were included in

the proposed rule because of the greater potential for substantial

competitive harm that would result from the release of observer data on

haul locations, given that these fisheries are conducted by a

relatively small number of vessels, involve relatively small amounts of

quota, and are geographically specific in nature. NMFS has determined

to continue to exempt these fisheries from release of haul-by-haul

observer data under this final rule, given general concerns about the

release of these data and continued industry support for the release of

haul-by-haul observer data collected for all other trawl fisheries,

particularly those that experience the highest salmon bycatch rates.

Observer data collected on board vessels participating in the Greenland

turbot fishery still could be released under the Freedom of Information

Act, provided that NMFS provides written notice to each vessel operator

and owner of a request for disclosure and describes the nature of the

information requested for public release.

Comment 11. The preamble to the proposed rule implies that NMFS may

limit the release of haul-by-haul data to those collected from 1992

onward. This restriction is inappropriate. Data collected prior to 1992

may be a valuable source of bycatch pattern information and should be

released.

Response. NMFS intent for the release of specified observer data on

a haul-by-haul basis is to facilitate research by industry on salmon

and other prohibited species bycatch that would lead to more informed

decisions by vessel operators on alternative fishing practices to

minimize bycatch rates of these species. Pending the availability of

staff resources, NMFS concurs in the release of observer data specified

in regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) for all prior

years where available. NMFS has taken this position after considering

(1) assertions by members of the industry that historic data are

necessary to better support independent industry initiatives, to

identify bycatch patterns, and to better address the bycatch problem in

the groundfish trawl fisheries, and (2) the potential competitive harm

resulting from the release of observer data becomes increasingly

diminished relative to historic data.

Comment 12. Regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2)

should be revised to clarify that the specified observer data are not

released to the public under vessel name.

Response. NMFS has revised the final rule to clarify the intent of

NMFS that haul-by-haul observer data will not identify the vessel from

which the data were collected.

Comment 13. The intent of proposed regulatory language at

Sec. 672.7(n) is unclear.

Response. Section 672.7(n) prohibits vessel operators who deliver

BSAI groundfish catch to GOA processors from discarding salmon until

the salmon are counted by a NMFS-certified observer. Similarly, GOA

processors are prohibited from discarding salmon taken as bycatch in a

BSAI trawl fishery until an observer has counted each fish, unless the

processor is exempt from observer coverage. The intent of this

regulation is to ensure that salmon incidentally taken in the BSAI

trawl fisheries are counted by a NMFS-certified observer if the

associated groundfish catch is delivered to a GOA processor and to

discourage vessel operators who harvest BSAI groundfish from delivering

to GOA processors for the sole purpose of avoiding costs associated

with retaining salmon under regulations at Sec. 675.20(c) (3) and (6).

Comment 14. In the proposed rule at Sec. 675.20(c)(6)(i), the

phrase ``until all salmon have been counted by a NMFS-certified

observer'' should be revised to read ``until the number of salmon has

been determined by a NMFS-certified observer''. This revision would

allow the NMFS Observer Program to develop guidelines for observers

that provide alternative methods for estimating the number of salmon

that have been retained for enumeration. These guidelines would be

especially important if the number of salmon retained by a vessel or

processor is large and salmon cannot be individually counted without

jeopardizing other observer duties.

Response. NMFS is preparing written instructions to observers for

purposes of complying to the extent practicable with this final rule.

These instructions will include guidelines for observers for obtaining

an estimate of the number of retained salmon when time constraints or

other observer duties prevent an observer from counting each fish. NMFS

agrees that the suggested revision to regulatory text clarifies NMFS

intent and the final rule has been changed accordingly.

Comment 15. Based on information presented in the EA/RIR, the

proposed rule requiring mandatory retention of salmon until counted by

a NMFS-certified observer is unnecessary for proper scientific

management of salmon stocks, but instead is intended to meet a

political demand that activity of the groundfish fleet be curtailed. If

NMFS is adequately accounting for the take of salmon bycatch in the

North Pacific fisheries, it is unwise to burden observers with

additional duties for political reasons when observers could spend that

time ensuring the accuracy of their samples for all species for which

they are charged with gathering data.

Response. No information exists to indicate that the current level

of salmon bycatch in the Alaska trawl fisheries presents critical

conservation issues; however, low salmon returns for Western Alaska

stocks indicate that the potential exists for conservation concerns.

NMFS estimates salmon bycatch numbers in the Alaska groundfish

fisheries using observed bycatch rates, although NMFS has expressed the

opinion that observed bycatch rates could be improved if larger sample

sizes were possible. The final rule would provide data to compare

observed salmon bycatch rates with those derived through the mandatory

salmon retention requirements for purposes of improving the overall

estimate of salmon bycatch in the Alaska trawl fisheries.

NMFS shares the concern about observers being burdened with

additional obligations, especially if new obligations jeopardize the

collection-of-data on which the management of fishery resources is

based. Nonetheless, NMFS has approved regulations requiring mandatory

retention of salmon until a NMFS-certified observer has determined the

number of salmon retained and completed the collection of any

scientific data or biological samples from the retained fish. This

action is necessary to provide additional information to management

agencies and the industry on which to base the development of practical

management measures to address the salmon bycatch problem. NMFS has

determined that this information is sufficiently important to include

its collection among the duties of NMFS-certified observers to the

extent possible. NMFS is preparing written guidelines for observers to

facilitate the collection of salmon data without serious jeopardy to

other observer duties.

Classification

NMFS prepared an RIR that concludes that this rule will not have a

significant economic impact on a substantial number of small entities.

A copy of this analysis is available from the Council (see ADDRESSES).

This final rule has been determined to be not significant under

E.O. 12866.

List of Subjects in 50 CFR Parts 672 and 675

Fisheries, Reporting and recordkeeping requirements.

Dated: April 14, 1994.

Nancy Foster,

Deputy 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. 672.7, paragraph (o) is added to read as follows:

Sec. 672.7 Prohibitions.

* * * * *

(o) Discard any salmon taken incidental to a directed fishery for

Bering Sea and Aleutian Islands management area groundfish by vessels

using trawl gear until notified by a NMFS-certified observer that the

number of salmon has been determined and the collection of any

scientific data or biological samples has been completed as provided at

50 CFR 675.20(c)(6).

3. In Sec. 672.27, paragraph (g) is added to read as follows:

Sec. 672.27 Observers.

* * * * *

(g) Release of observer data to the public. (1) The following

information collected by observers for each catcher processor and

catcher vessel during any weekly reporting period may be made available

to the public:

(i) Vessel name and Federal permit number;

(ii) Number of chinook salmon and ``other salmon'' observed;

(iii) The ratio of total round weight of halibut or Pacific herring

to the total round weight of groundfish in sampled catch;

(iv) The ratio of number of king crab or C. bairdi Tanner crab to

the total round weight of groundfish in sampled hauls;

(v) The number of observed trawl hauls or fixed gear sets;

(vi) The number of trawl hauls that were basket sampled; and

(vii) The total weight of basket samples taken from sampled trawl

hauls.

(2)(i) The information listed in paragraphs (g)(2)(i) (A) through

(M) of this section and collected by observers from observed hauls

onboard vessels using trawl gear to participate in a directed fishery

for groundfish other than for rockfish, Greenland turbot, or Atka

mackerel may be made available to the public:

(A) Date;

(B) Time of day gear is deployed;

(D) Bottom depth;

(E) Fishing depth of trawl;

(F) The ratio of the number of chinook salmon to the total round

weight of groundfish;

(G) The ratio of the number of other salmon to the total round

weight of groundfish;

(H) The ratio of total round weight of halibut to the total round

weight of groundfish;

(I) The ratio of total round weight of herring to the total round

weight of groundfish;

(J) The ratio of the number of king crab to the total round weight

of groundfish;

(K) The ratio of the number of C. bairdi Tanner crab to the total

round weight of groundfish;

(L) Sea surface temperature (where available); and

(M) Sea temperature at fishing depth of trawl (where available).

(ii) The identity of the vessels from which the data in paragraph

(g)(2)(i) of this section are collected will not be released.

(3) In exceptional circumstances, the owners and operators of

vessels may provide to the Regional Director written justification at

the time observer data are submitted or within a reasonable time

thereafter, that disclosure of the information listed in paragraph

(g)(1) or (g)(2) of this section could reasonably be expected to cause

substantial competitive harm. The determination whether to disclose the

information will be made pursuant to 15 CFR 4.7.

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

4. The authority citation for part 675 continues to read as

follows:

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

Sec. 675.2 [Amended]

5. In Sec. 675.2, the definition of ``Bycatch Limitation Zone 2H''

is removed.

6. In Sec. 675.7, paragraph (p) is added to read as follows:

Sec. 675.7 Prohibitions.

* * * * *

(p) Discard any salmon taken incidental to a directed fishery for

groundfish by vessels using trawl gear until notified by a NMFS-

certified observer that the number of salmon has been determined and

the collection of any scientific data or biological samples has been

completed as provided at Sec. 675.20(c)(6).

7. In Sec. 675.20, paragraphs (c)(3) and (4) are revised and

paragraph (c)(6) is added to read as follows:

Sec. 675.20 General limitations.

* * * * *

(3) The operator of each vessel regulated under this part must sort

its catch as soon as possible after retrieval of the gear and, except

as provided under paragraph (c)(6) of this section, must return all

prohibited species or parts thereof to the sea immediately, with a

minimum of injury, regardless of its condition, after allowing for

sampling by an observer if an observer is onboard.

(4) Except as provided under paragraph (c)(6) of this section, it

will be a rebuttable presumption that any prohibited species retained

onboard a fishing vessel regulated under this part was caught and

retained in violation of this section.

* * * * *

(6) Retention of salmon. (i) Except as provided in paragraph

(c)(6)(ii) of this section, the operator of a vessel and the manager of

a shoreside processing operation must not discard any salmon taken

incidental to a directed fishery for groundfish by vessels using trawl

gear until the number of salmon has been determined by a NMFS-certified

observer and the collection of any scientific data or biological

samples from the salmon has been completed.

(A) Operators of vessels carrying observers onboard and whose

fishing operations allow for sorting of groundfish catch for salmon

must retain all salmon bycatch from each haul in a separate bin or

other location that allows an observer free and unobstructed physical

access to the salmon to count each fish and collect any scientific data

or biological samples. Salmon from different hauls must be retained

separately in a manner that identifies the haul from which the salmon

were taken.

(B) Operators of vessels not carrying observers onboard or whose

fishing operations do not allow for sorting of groundfish catch for

salmon must ice, freeze, or store in a refrigerated saltwater tank all

salmon taken as bycatch in trawl operations for delivery to the

processor receiving the vessel's groundfish catch.

for groundfish using trawl gear must retain all salmon delivered by

each trawl vessel during a weekly reporting period in separate bins

marked with the vessel's name and ADF&G fish ticket number(s) for each

delivery until a NMFS-certified observer has counted each salmon and

collected any scientific data or biological samples from the salmon

delivered to the processor by that vessel. Processors without an

observer present must store whole salmon in an iced or frozen state

until an observer is available to count each fish. Salmon must be

stored at a location that allows an observer free and unobstructed

physical access to each salmon.

(ii) Mothership processor vessels and shoreside processing

facilities that are exempt from obtaining observer coverage during a

month under Sec. 675.25 or Sec. 672.27 of this chapter are exempt from

mandatory retention of salmon under this paragraph (c)(6).

(iii) Operators of vessels and managers of shoreside processing

operations that are required to retain salmon under paragraph (c)(6)(i)

of this section must designate and identify to the NMFS-certified

observer onboard the vessel or at the shoreside operation a crew person

or employee to be responsible for sorting, retention, and storage of

salmon consistent with this paragraph (c)(6). Upon the request of the

NMFS-certified observer, the designated crew person or employee also is

responsible for counting salmon and taking biological samples from

retained salmon under the direction of the observer.

(iv) Salmon must be returned to Federal waters as soon as is

practicable, with a minimum of injury, regardless of condition,

following notice by a NMFS-certified observer that the number of salmon

has been determined and the collection of any scientific data or

biological samples has been completed.

8. In Sec. 675.21, paragraphs (a)(4) and (c)(1)(iii) are removed;

paragraphs (a)(5) through (a)(7) are redesignated as paragraphs (a)(4)

through (a)(6), respectively; paragraph (c)(1)(iv) is redesignated as

paragraph (c)(1)(iii); and paragraphs (b)(1) introductory text,

(b)(2)(i) and newly redesignated paragraphs (a)(4) and (c)(1)(iii) are

revised to read as follows:

Sec. 675.21 Prohibited species catch (PSC) limitations.

(a) * * *

(4) The PSC limit of Pacific halibut caught while conducting any

trawl fishery for groundfish in the Bering Sea and Aleutian Islands

Management Area during any fishing year is an amount of Pacific halibut

equivalent to 3,775 mt of halibut mortality.

* * * * *

(b) * * * (1) Apportionment to trawl fishery categories. NMFS,

after consultation with the Council, will apportion each PSC limit set

forth in paragraphs (a) (1) through (5) of this section into bycatch

allowances for fishery categories specified in paragraph (b)(1)(iii) of

this section, based on each category's proportional share of the

anticipated incidental catch during a fishing year of prohibited

species for which a PSC limit is specified and the need to optimize the

amount of total groundfish harvested under established PSC limits. The

sum of all bycatch allowances of any prohibited species will equal its

PSC limit.

* * * * *

(2) * * * (i) NMFS, after consultation with the Council, may

apportion the halibut PSC limit for non-trawl gear set forth in

paragraph (a)(6) of this section into bycatch allowances for fishery

categories specified in paragraph (b)(2)(ii) of this section, based on

each category's proportional share of the anticipated bycatch mortality

of halibut during a fishing year and the need to optimize the amount of

total groundfish harvested under the non-trawl halibut PSC limit. The

sum of all halibut bycatch allowances will equal the halibut PSC limit

specified in paragraph (a)(6) of this section.

* * * * *

(1) * * *

(iii) Halibut bycatch allowance. If, during the fishing year, the

Regional Director determines that U.S. fishing vessels participating in

any of the trawl fishery categories listed in paragraphs (b)(1)(iii)

(B) through (F) of this section in the Bering Sea and Aleutian Islands

Management Area will catch the halibut bycatch allowance, or seasonal

apportionment thereof, specified for that fishery category under

paragraph (b) of this section, NMFS will publish in the Federal

management area to directed fishing for the species and/or species

group that comprises that fishery category (which together constitute a

species or species group for purposes of the directed fishing

standards) for the remainder of the year or for the remainder of the

season, except that when a bycatch allowance, or seasonal apportionment

thereof, specified for the pollock/Atka mackerel/``other species''

fishery category is reached, only directed fishing for pollock is

closed to trawl vessels using non-pelagic trawl gear.

* * * * *

9. In Sec. 675.25, paragraph (g) is added to read as follows:

Sec. 675.25 Observers.