Fisheries of the Exclusive Economic Zone Off Alaska; Improved Retention/Improved Utilization

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 970611133-7263-02; I.D. 052997B]

RIN 0648-AJ36

Fisheries of the Exclusive Economic Zone Off Alaska; Improved

Retention/Improved Utilization

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 49 to the

Fishery Management Plan for the Groundfish Fishery of the Bering Sea

and Aleutian Islands Area (FMP). This final rule requires all vessels

fishing for groundfish in the Bering Sea and Aleutian Islands

Management Area (BSAI) to retain all pollock and Pacific cod beginning

January 3, 1998, and all rock sole and yellowfin sole beginning January

1, 2003. This final rule also establishes a 15-percent minimum

utilization standard for all at-sea processors beginning January 3,

1998, for pollock and Pacific cod and, beginning January 1, 2003, for

rock sole and yellowfin sole. This action is necessary to respond to

the fishing industry's socioeconomic needs that have been identified by

the North Pacific Fishery Management Council (Council) and is intended

to further the goals and objectives of the FMP.

DATES: Effective January 3, 1998.

ADDRESSES: Copies of Amendment 49 and the Environmental Assessment/

Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/

FRFA) prepared for this action may be obtained from NMFS, P.O. Box

21668, Juneau, AK 99802, Attn: Lori J. Gravel. Send comments regarding

burden estimates or any other aspect of the data requirements,

including suggestions for reducing the burdens, to NMFS and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget (OMB), Washington, DC 20503, Attn: NOAA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the

exclusive economic zone of the BSAI are managed by NMFS under the FMP.

The FMP was prepared by the Council under the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act). Regulations

governing the groundfish fisheries of the BSAI appear at 50 CFR parts

600 and 679.

At its September 1996 meeting, the Council adopted Amendment 49 to

the FMP and recommended that NMFS prepare a rulemaking to implement the

amendment. A notice of availability of Amendment 49 was published in

the Federal Register on June 5, 1997 (62 FR 30835), and invited comment

on the amendment through August 4, 1997. A proposed rule to implement

Amendment 49 was published in the Federal Register on June 26, 1997 (62

FR 34429). Comments on the proposed rule were invited through August

11, 1997. A total of twelve letters of comment on the amendment and/or

the proposed rule were received. Nine letters of comment were received

by the end of the comment period on Amendment 49. Of these nine, two

comments opposed Amendment 49, and seven comments supported approval

but recommended changes to the proposed rule. Of the three letters of

comment received after the end of the comment period on the amendment

but before the end of the comment period on the proposed rule, two

opposed Amendment 49 and implementation of the proposed rule. One

supported approval of Amendment 49 but recommended changes to the

proposed rule. Comments on both the amendment and the proposed rule are

summarized and responded to in the Response to Comments section below.

Upon reviewing the reasons for Amendment 49 to the FMP and the

comments on the proposed rule to implement it, NMFS determined that

this action is necessary for the conservation and management of the

groundfish fishery of the BSAI. NMFS approved Amendment 49 on September

3, 1997, under section 304(a) of the Magnuson-Stevens Act. Additional

information on this action may be found in the preamble to the proposed

rule and in the EA/RIR/FRFA.

The Council also adopted a parallel Amendment 49 to the Fishery

Management Plan for Groundfish of the Gulf of Alaska (GOA) in June 1997

and recommended that NMFS prepare a rulemaking to extend the Improved

[[Page 63881]]

Retention/Improved Utilization (IR/IU) program to the GOA. A proposed

rule to implement Amendment 49 in the GOA was published in the Federal

Register on August 18, 1997 (62 FR 43977) with comments invited through

October 2, 1997.

Response to Comments

Comment 1: The IR/IU program will severely disadvantage small

entities to the benefit of large at-sea and shoreside processors. These

impacts will be highly allocative and are an inappropriate result of an

FMP amendment that has no conservation purpose but is intended solely

to respond to the socioeconomic needs of the fishing industry.

Response: The purpose of this amendment is to reduce discards. The

EA/RIR/FRFA prepared for Amendment 49 concluded that the action could

impose significant economic impacts on a substantial number of small

entities. The extent of the impact for a particular operation will be

directly proportional to the level of discards of the four IR/IU

species. Vessels or fisheries that currently discard IR/IU species at

high rates will face a substantially greater burden than vessels or

fisheries with lower discard rates of IR/IU species. The impact on a

particular operation also is expected to vary inversely with the size

and configuration of the operation, with larger processors more likely

to have the space and infrastructure necessary to retain and process

IR/IU species. Catcher/processors face greater space constraints than

onshore processors, and are limited in their ability to expand due to

vessel moratorium, license limitation, and U.S. Coast Guard load line

requirements. As a result, the impacts of the IR/IU program are

expected to fall most heavily on catcher/processors, especially smaller

factory trawlers that lack the capacity to produce fishmeal.

During development of Amendment 49, the Council considered and

rejected alternatives that might have mitigated impacts on smaller

factory trawlers. Alternatives that would have established exemptions

or phase-in periods based on vessel size were rejected because they

would have diluted expected reductions in bycatch and discards and

because they were thought to favor sectors of the industry with high

discard rates. The Council believed that an inevitable and appropriate

consequence of any discard reduction program is that the compliance

burden would be proportionate to the current bycatch and discard rate

of a particular operation.

NMFS currently is assisting with industry efforts to develop more

selective fishing gear and fishing techniques to reduce the adverse

economic impacts of Amendment 49. NMFS approved a large-scale fishing

experiment in the BSAI during August 1997 to test experimental trawl

gear designed to reduce pollock bycatch in flatfish trawl fisheries.

Initial results from the experiment have been promising and will be

made available to the public in late 1997. These and other efforts may

assist the industry in significantly reducing the effects of Amendment

49 on certain trawl fisheries. Amendment 49 provides incentives for the

Alaska groundfish industry to develop innovative solutions for reducing

bycatch that also could be applicable to other fisheries throughout the

United States and the world.

Comment 2: The EA/RIR/IRFA does not calculate net economic benefits

or contain a cost benefit analysis as required under E.O. 12866.

Response: The Office of Information and Regulatory Affairs of the

Office of Management and Budget has concurred with NMFS' determination

that this rule is not significant for purposes of Executive Order

12866. Accordingly, the requirements of section 6(a)(3)(B) and (C),

e.g., formal benefit/cost analysis, are not applicable to this

regulatory action. However, the requirements of section 1(b), The

Principles of Regulation, are applicable, including principle 6 which

requires ``each agency [to] assess both the costs and the benefits of

the intended regulation and recognizing that some costs and benefits

are difficult to quantify, propose, or adopt a regulation only upon a

reasoned determination that the benefits of the intended regulation

justify its costs.'' NMFS has fully complied with this requirement.

NMFS has noted repeatedly during the 4 years of analysis for

Amendment 49 that the cost data necessary to conduct a rigorous,

quantitative net benefit analysis are not available. When the industry

has been invited to provide such data, it has declined to do so.

Therefore, NMFS prepared an analysis on the basis of the best available

scientific information. This largely gross revenue analysis was

supplemented with qualitative assessments of the probable response of

the affected sectors, the probable environmental response, as well as

the potential price and market response, to the proposed action. Review

and advice was sought from the Council's Advisory Panel and Scientific

and Statistical Committee as well as other experts, from within the

industry and outside the industry, in an effort to test the conclusions

of the analysis against their respective experience and expertise.

Given the limitations on data, these experts consistently affirmed the

analytical approach as well as the findings of the analysis. The EA/

RIR/FRFA meets the rigor with which benefits and costs of amendments to

the FMP have been analyzed, historically.

Comment 3: The IR/IU program may not satisfy Magnuson-Stevens Act

provisions that require management programs ``to the extent practicable

and in the following priority--(A) minimize bycatch; and (B) minimize

the mortality of bycatch which cannot be avoided.'' If no restrictions

are placed on the production of fishmeal, many operations will have

little incentive to reduce their bycatch of undersize fish and unwanted

species. To satisfy this requirement, the program must demonstrate that

such reductions are the result of increased avoidance of the types of

unwanted pollock, Pacific cod, rock sole, and yellowfin sole that

fishermen currently harvest. If the proposed program simply causes

industry to retain and use bycatch without increasing the avoidance of

these fish, the statutory requirement to minimize or avoid bycatch will

remain unfulfilled.

Response: The Magnuson-Stevens Act defines the term ``bycatch'' as

``fish which are harvested in a fishery, but which are not sold or kept

for personal use, and includes economic discards and regulatory

discards.'' Because the IR/IU program requires 100 percent retention of

the four IR/IU species, bycatch of these species, as defined in the

Magnuson-Stevens Act, will largely be eliminated in the groundfish

fisheries of the BSAI.

With respect to the issue of ``avoidance,'' the IR/IU program will

provide significant incentives for all sectors of the industry to avoid

unwanted harvest of IR/IU species. While operations that have the

capacity to produce fishmeal may face less immediate incentives to

avoid unwanted harvest of IR/IU species, the EA/RIR/FRFA concluded that

the IR/IU program will provide an incentive for all sectors of the

industry, including those with fishmeal processing capacity, to avoid

the unwanted harvest of IR/IU species. This is so because processing

fishmeal draws resources away from the production of higher value

products. However, most catcher/processors and motherships with

fishmeal processing capacity were designed to operate in the midwater

pollock fishery. When participating in that fishery, these vessels

already retain nearly 100 percent of their pollock and have little

unwanted harvest of other groundfish

[[Page 63882]]

species. Consequently, the IR/IU program is expected to have less

impact on these operations.

Operations that participate in less selective bottom trawl

fisheries and that do not have the capacity to produce fish meal will

have a significant incentive to avoid the harvest of unwanted or un-

targeted IR/IU species due to the cost of holding less valuable species

in lieu of more valuable species. The Council expects that the economic

incentive produced by the IR/IU program will generate innovative gear

and fishing techniques as operators develop methods to comply with full

retention requirements in a cost-effective manner. Currently, an

association of factory trawlers configured for head-and-gut (H&G)

processing is testing experimental fishing gear designed to reduce

unwanted harvests of pollock and Pacific cod in flatfish fisheries.

The Council considered and rejected various proposals to limit

production of fishmeal. Such proposals were considered to be

unreasonably restrictive and of questionable benefit. A limit on

fishmeal production would impose substantial additional costs on

operations that have developed fishmeal plants for the purpose of

processing fish waste, yet such limits would not increase benefits to

the nation.

Comment 4: Section 313(f) of the Magnuson-Stevens Act requires that

in implementing section 303(a)(11), the Council shall ``submit

conservation and management measures to lower, on an annual basis, for

a period of not less than 4 years, the total amount of economic

discards occurring in the fisheries under its jurisdiction.'' If the

proposed IR/IU program is to satisfy this requirement, it must meet two

criteria. First it must demonstrate annual reductions in the total

amount of economic discards over a 4-year period. The proposed IR/IU

program will result in a 1-year reduction in economic discards of

pollock and Pacific cod, with no further reductions scheduled until 5

years later when a one time reduction in rock sole and yellowfin sole

will be required. To satisfy the statutory requirement, the Council

must identify where and how reductions in economic discards are to

occur in years two, three, and four.

Response: See response to comment 3. The IR/IU program prohibits

economic discards of pollock and Pacific cod beginning January 1, 1998,

making additional reductions unnecessary for those species. With

respect to bycatch of other species, the IR/IU program is but one

element of the Council and NMFS's ongoing efforts to reduce bycatch and

is not intended to reduce all forms of bycatch occurring in the

groundfish fisheries off Alaska. Other existing bycatch reduction

programs include time and area closures, prohibited species catch

limits, gear restrictions, support for gear research, and the vessel

incentive program. Additional bycatch reduction programs are also under

consideration by the Council.

Comment 5: The IR/IU proposal does not meet the goals identified by

the Council's problem statement. Amendment 49 will fail to meet the

Council's first goal to assure the long-term health of the fish stocks.

The EA/RIR/IRFA concludes that the program, as designed, will fail to

provide any conservation or positive environmental impact while most

likely resulting in a decrease of long-term economic benefits to the

nation. Of the industry sectors operating in the North Pacific, only

the pollock and crab fleets lack a long-term stable fisheries-based

economy due to limited stocks. This plan does nothing to address the

waste of crab in the directed crab fisheries and will simply encourage

more meal production rather than increase the supply of pollock

available for surimi and fillet production.

Amendment 49 also will fail to meet the Council's second goal:

reducing bycatch, minimizing waste, and improving utilization of fish

resources. While some short attention was paid to defining waste, the

EA/RIR/IRFA did not sufficiently analyze the real question raised by

the program: Will we expend more resources and receive less benefit

from our fish resources by implementing the proposal? The proposed IR/

IU program will encourage continued economic loss and waste by (1)

allowing fish that are currently discarded to be turned into meal, and

(2) encouraging the use of resources to produce products worth less

than the cost of production.

Response: See response to comments 3 and 4. Amendment 49 is only

one of many efforts by the Council to reduce bycatch and ensure the

long-term health of fish stocks. The Council is considering other

efforts to reduce groundfish and crab bycatch including time and area

closures, prohibited species catch limits, research into more selective

fishing gear, and a vessel incentive program. The EA/RIR/FRFA prepared

for Amendment 49 concluded that the program would provide a net benefit

to the nation through a reduction in discards and improved utilization

of species once they are harvested. The Council concurred in this

conclusion as demonstrated by its unanimous vote to adopt Amendment 49.

Comment 6: While both of NMFS's Federal Register notices and the

EA/RIR/IRFA analysis conclude that there will be no environmental

benefit resulting from Amendment 49, Council on Environmental Quality

(CEQ) regulations implementing NEPA still require the preparation of an

environmental impact statement (EIS) for this major Federal action. CEQ

regulations state that events which trigger an EIS include such

indirect effects as changes in the use of ecosystems, and changes in

historic and social effects, whether or not they are indirect or

cumulative (40 CFR 1508.8(b)). An action also is significant when the

effect on the human environment is highly controversial (40 CFR

1508.27(b)(4)) or is precedent setting (40 CFR 1508.27(b)(6)). The fact

that the primary stated goal of the program is to avoid public censure

of ``waste'' at the national level implies that this proposal is

controversial. The EA/RIR/IRFA finds that the IR/IU program will

significantly disadvantage an historic user group and is even intended

solely for the purpose of meeting social needs. It certainly stands to

establish a precedent for the nation. In other words, the EA/RIR/IRFA's

findings clearly and unambiguously demonstrate that the IR/IU program

is a major Federal action significantly impacting the human

environment; therefore NEPA requires the preparation of an EIS.

Response: NMFS has determined that Amendment 49 will not affect

significantly the quality of the human environment. Therefore, the

preparation of an EIS on the final action is not required under section

102(2)(c) of NEPA or CEQ's implementing regulations. This finding of no

significant impact is contained in the EA/RIR/IRFA for Amendment 49.

Nevertheless, NMFS is currently preparing a broader EIS on the

groundfish fisheries of the BSAI. This EIS will consider the impacts of

the current groundfish management system including the IR/IU program.

Comment 7: The IRFA was flawed in that several reasonable

traditional alternatives, currently used by NMFS and the State, were

summarily rejected without discussion by the Council and were not

analyzed in the IRFA. The Regulatory Flexibility Act (RFA) requires a

description of ``any significant alternatives . . . which minimize any

significant economic impact'' (5 U.S.C. 603(c)). The IRFA doesn't even

mention an industry proposal to exempt unmarketable undersize fish from

the proposed rule. Minimum size limits are currently used

[[Page 63883]]

in the halibut, crab, herring, and salmon fisheries. The Council has

refused to consider industry proposals to only require retention of

fish greater than 1.0 or 1.5 lb citing enforcement concerns. A minimum

size standard applied to the IR/IU program would make this an effective

program for reducing waste. The EA/RIR/IRFA itself bases its cost/

benefit calculations on a set of minimum marketable sizes. Amendment

49, as proposed, should not be approved by NMFS, but should, instead,

be returned to the Council for serious consideration of a viable

alternative to mitigate the impact on the small H&G catcher/processors.

The fact that, in effect, only one alternative was considered for

improved retention is a serious defect in the analysis, and the fact

that improved retention was considered a different option than improved

utilization are disturbing attempts at arguing that three options were

considered rather than one option and the status quo. Because the

option of using traditional size restrictions is available, this

alternative should be considered as viable for the purposes of analysis

even if the Council did not intend to select that alternative.

Response: A wide variety of alternatives was considered during

development of the IR/IU program. These alternatives were analyzed in a

series of Council documents beginning with an Implementation Issues

Analysis dated September 11, 1995. These documents were incorporated by

reference into the final EA/RIR/FRFA. The Council considered and

rejected minimum size limits for retention of IR/IU species because an

exemption allowing the discard of undersize fish would have diluted the

incentives for vessel operators to avoid the bycatch of juvenile fish

in the first place. See also response to comment 12.

The RFA as supplemented contains the required discussion of

alternative that will have less impact on small entities and the

reasons such alternatives were rejected.

Comment 8: Much of the ``full utilization'' achieved by shore-based

plants results from the production of fishmeal. The Environmental

Protection Agency (EPA) has stated that shoreside pollock fishmeal

processors lead the industry in terms of pollutant discharges. In

contrast, the EPA found that discharges of seafood wastes to deeper

unimpounded offshore waters by mobile at-sea processors do not create

the same kinds of problematic waste piles as do shore-based processors

(U.S. EPA, Response to Comments, Seafood Processors in Alaska, NPDES

General Permit No. AK-G52-0000 (1995)). An IR/IU program that allows

meal to meet the increased utilization standard creates a pollution

concern. Any IR/IU program should be designed to avoid or minimize

rather than increase the impact of processing wastes on the ocean

ecosystem.

Response: The potential environmental degradation resulting from

shore-based groundfish processing varies on a case-by-case basis

depending on the form of the discharged material and the location of

the discharge. For this reason, the EPA no longer regulates shore-based

surimi and fishmeal processors in the BSAI under the general permit

cited in the comment. In general, fishmeal processing transforms the

waste stream from solid to liquid form, which may have greater or

lesser impacts on the environment depending on the location of the

discharge. In many instances, liquid waste from fishmeal processing may

have less impact on the environment than solid waste because it

disperses more rapidly. As a result, the EPA now regulates each shore-

based surimi and fishmeal processor under a separate NPDES permit which

establishes limits on both solid and liquid waste discharges. Shore-

based processors must continue to operate under the terms of their

NPDES permits once the IR/IU program becomes effective.

Comment 9: If fishermen are required to retain and market juvenile,

diseased, or damaged fish, the reputation of Alaska seafood products on

the world market will be damaged.

Response: The final rule does not place restrictions on types of

products a vessel may produce from IR/IU species, nor does it restrict

the industry to production of products for human consumption. Small,

damaged, or diseased fish may be processed into fishmeal, fish oil,

minced fish, or other products not intended for human consumption.

Operations with the capacity to produce fishmeal will have little

difficulty processing fish that may not be fit for human consumption.

Operations without the capacity to produce fishmeal may find it more

difficult to handle such fish. However, NMFS does not expect processors

to deliberately undermine the marketability of their food grade

products by including fish that may be unsuitable for that purpose.

NMFS expects that most operators will comply with the IR/IU program by

developing a range of products and use below food grade fish to produce

products not intended for human consumption.

Comment 10: Amendment 49 should allow for the live release of

bycatch, as encouraged by the Magnuson-Stevens Act. Vessel operators

using longline, pot, and jig gear have the ability to carefully release

bycatch. While pollock and Pacific cod have closed swim bladders and

may not survive release, flatfish have open swim bladders and will

survive.

Response: Longline, pot, and jig vessels do not encounter bycatch

of rock sole and yellowfin sole in quantities sufficient to warrant a

special exemption for those gear types. NMFS catch statistics indicate

that longline, pot, and jig vessels operating in the BSAI encounter

only negligible amounts of rock sole and yellowfin sole. Longline

bycatch of these species averages 0.0 percent for rock sole and 0.2

percent for yellowfin sole as a percentage of total catch. Bycatch of

these species by pot and jig vessels is virtually unreported.

Consequently, a full retention requirement for rock sole and yellowfin

sole is expected to have a negligible effect on vessels using longline,

pot, and jig gear.

Comment 11: The final rule should contain exemptions for diseased,

contaminated, parasite-ridden, or damaged fish. Contaminated, diseased,

parasite-ridden, or damaged fish are inevitably encountered in the

course of fishing and processing activities. Retention of such fish is

in conflict with Food and Drug Administration (FDA) Hazard Analysis

Critical Control Point (HACCP) requirements. In fact, the HACCP plans

drafted by many companies actually require the discard of fillet

products with large amounts of parasites in them.

Response: NMFS recognizes that some fish may enter a processing

facility that may be below food grade (see response to comment 9).

However, the final rule does not limit the type of products a processor

may produce from its retained catch, nor does it establish a minimum

recovery rate for each fish. The 15-percent minimum utilization rate

requirement in the final rule applies to a vessel's aggregate

production from each IR/IU species during a fishing trip, rather than

each individual fish. Many processors in the BSAI currently utilize

damaged and parasite ridden fish in a variety of products such as

fishmeal, fish oil, minced fish, and bait that are not intended for

human consumption.

Federal HACCP regulations require processors to address food safety

hazards in their HACCP plans. However, nothing in the HACCP regulations

requires processors to discard fish that are below food grade. Such

fish may be utilized in a variety of non-food products. Seafood

processors that currently rely on discarding of whole fish to comply

with

[[Page 63884]]

HACCP requirements will need to modify their HACCP plans to comply with

the provisions of the IR/IU program.

The Council and NMFS considered and rejected various exemptions for

damaged and parasite-ridden fish for a variety of reasons. An exemption

allowing discards of fish that are damaged in the course of handling

and processing could undermine the effectiveness of the IR/IU program

and render it unenforceable. NMFS believes that such an exemption would

provide an incentive for processors to deliberately damage quantities

of IR/IU species that they would prefer not to retain and process for

economic reasons.

NMFS does not have statistics on the percentage of fish that are

rendered unsuitable for food products as a result of parasites. Various

parasites are commonly encountered in BSAI groundfish catches, and

processors have developed various techniques for parasite removal

during processing. An exemption that would allow discarding of fish

with parasites could undermine the effectiveness of the IR/IU program

and allow wholesale discards of marketable fish because some form of

parasite is likely to be encountered in most pollock and Pacific cod.

The Council and NMFS recognize that retention of damaged fish may

pose a problem for certain sectors of the industry. Processors with the

capacity to produce fishmeal are unlikely to be affected because

damaged and parasite-ridden fish are suitable for fishmeal processing.

Processors without fishmeal plants may find it more difficult to

produce marketable products from damaged fish. To address these

concerns, the Council voted to establish an IR/IU implementation

committee composed of representatives from industry, conservation

groups, and management agencies. This IR/IU implementation committee

will be charged with examining problems that surface during

implementation of the IR/IU program and providing the Council and NMFS

with recommendations for changes and modifications to the program that

may prove necessary. NMFS intends to work closely with the Council and

industry during implementation of Amendment 49 to further refine

aspects of the program as problems become apparent during

implementation.

Comment 12: The proposed IR/IU program should contain exemptions

for undersize fish. Most fish processing equipment is limited to

processing fish within certain size ranges. For technological reasons,

some processors may be unable to process fish that fall outside these

size parameters. A minimum size standard would increase the net

economic benefits to the nation as a result of the IR/IU program by not

imposing costs on industry to process unmarketable undersize fish.

Response: Processors with fishmeal plants will have no difficulty

processing undersize or juvenile fish. However, NMFS recognizes that

processors without fishmeal plants may be forced to process undersize

fish into products of little or no value, such as whole frozen fish.

During early development of the IR/IU program, the Council considered

and rejected exemptions for juvenile fish because an exemption allowing

the discard of undersize fish would not have provided vessel operators

an incentive to avoid the bycatch of juvenile fish in the first place.

The intent of the IR/IU program is to provide industry with incentives

to develop more selective fishing techniques, and that objective is

also underscored in the Magnuson-Stevens Act. To that end, NMFS is

currently sponsoring research into more selective fishing gear such as

larger mesh codends and trawl escape panels, and believes that fishing

selectivity will improve as vessel operators endeavor to avoid bycatch

of juvenile fish. To the extent that vessel operators are able to avoid

the capture of juvenile fish in the first place, the impacts of the

full retention requirement will be reduced.

Comment 13: The IR/IU program should not require the retention and

utilization of previously-caught fish which may be brought on board a

vessel through fishing or retrieval of lost gear. For example, last

year a vessel retrieved a codend that had been lost in a pollock

fishery 4 months earlier. The codend was still full of pollock

(approximately 80 mt). The fish had begun to putrefy and the gas caused

the codend to float to the surface. The vessel that retrieved the

codend had to bring the fish on board to dump the codend. According to

the proposed rule, that vessel would have been required to retain all

pollock brought on board the vessel without distinction as to their

condition or the circumstances involved. During the yellowfin sole

fishery, dead yellowfin sole commonly are caught that had been

previously discarded by other vessels. Under the IR/IU program, discard

of IR/IU species may be required for a vessel to comply with directed

fishing closures. Vessels should not be required to retain and utilize

dead and putrefying fish that were previously caught and discarded by

other vessels.

Response: NMFS agrees. The final rule has been modified to allow

for the discard of previously caught fish. Vessel operators should not

log previously caught fish as part of their round-weight catch of an

IR/IU species. NMFS daily fishing logbooks and daily cumulative

production logbooks already provide discard code 97 for previously

discarded (decomposed) fish taken with trawl gear in current fishing

efforts. This code also should be used when logging discards of

previously caught IR/IU species.

Comment 14: Since the purpose of the IR/IU program is to reduce

waste in the groundfish fishery, NMFS should review the advisability of

maintaining the current restrictions on the amount of pollock roe a

vessel is allowed to have on board at any point in time. Those

restrictions were adopted as an indirect method of prohibiting the

practice of roe-stripping. Although well intended, and supported by

industry at the time they were initially imposed, the current

regulations have actually resulted in the discarding of roe during time

periods of peak roe recovery. Such a result is incongruous in light of

current efforts to reduce waste in the fishery--especially in view of

the discarding restrictions incorporated in Amendment 49. NMFS should

reconsider the need for the roe retention limits once IR/IU regulations

go into effect and, if possible, increase the amount of retainable roe

so as to avoid situations where vessels are required to discard the

most valuable of all products produced by the pollock fishery.

Response: NMFS agrees. The current regulations governing retention

of pollock roe were adopted by NMFS in 1990 to implement Amendment 13/

19 to the groundfish fishery management plans for the BSAI and GOA.

Amendment 13 to the BSAI FMP states:

Roe-stripping is prohibited, and the Regional Director is

authorized to issue regulations to limit this practice to the

maximum extent practicable. It is the Council's policy that the

pollock harvest shall be utilized to the maximum extent possible for

human consumption.

Among the options considered by the Council during analysis of

Amendments 13/19 was an option that would have required full

utilization of pollock, a more restrictive option than the prohibition

on roe stripping that was adopted by the Council at that time. The IR/

IU program established by Amendment 49 in effect implements the more

restrictive roe-stripping prohibition originally rejected by the

Council for Amendment 13. Consequently, previously adopted regulations

that limit roe-stripping through maximum retainable percentages may be

redundant and unnecessary. For that reason, NMFS

[[Page 63885]]

intends to work with the Council and the Council's IR/IU implementation

committee to determine if existing limits on roe retention continue to

serve a purpose after implementation of the IR/IU program.

Comment 15: The IR/IU program should contain a provision to allow

trawlers to bleed codends when necessary for vessel safety. On occasion

a vessel may accidentally harvest more fish than can be safely brought

on board. Vessel operators should not be faced with either bringing the

fish on board and risking the safety of the entire crew and vessel, or

violating IR/IU regulations by discarding the portion of the catch that

cannot be brought on board safely.

Response: The Council's IR/IU industry committee considered and

rejected proposals to allow codend bleeding. The IR/IU committee

believed that this practice should stop, and that a prohibition on

bleeding codends would provide an incentive for fishermen to fish in a

more cautious manner when their holds are near capacity. In addition,

many catcher vessels have the capacity to carry excess catch on deck

safely, although fish retained in such a manner (without refrigeration)

may not be desired by the processor to which they are delivering. NMFS

Enforcement and the U.S. Coast Guard generally are not in a position to

evaluate whether a particular instance of discarding was motivated by

legitimate safety concerns or by economic reasons. Nevertheless, should

a vessel operator believe it necessary for the safety of the vessel to

bleed a codend, the amount of discards should be entered into the

vessel's daily fishing log along with a description of the extenuating

circumstances. NMFS will review such instances on a case-by-case basis

with consideration given to the extent of the violation and possible

mitigating circumstances.

Comment 16: The IR/IU program should provide a buffer between

maximum retainable bycatch (MRB) percentages under the directed fishing

standards and the IR/IU minimum retention requirements. Under the

proposed rule, the combination of these two standards results in a

single point (20 percent for pollock and Pacific cod and 35 percent for

rock sole and yellowfin sole) that a vessel operator must achieve to

comply with both standards simultaneously. Without onboard scales, no

catcher vessel can retain precisely 20 percent of an IR/IU species.

This is true for both vessels that partially sort their catch on board

and for those that pump fish directly into refrigerated seawater. This

situation is an untenable position for a catcher vessel and differs

greatly from the situation for a catcher/processor, which may meet both

standards by monitoring the number of cases of product on board and

maintaining appropriate ratios. If MRB requirements take precedence

over IR/IU requirements then the proposed rule should lower the

retention standard when an IR/IU species is closed to directed fishing

to provide a range of 15 to 20 percent for pollock and Pacific cod and

25 to 35 percent for rock sole and yellowfin sole within which catcher

vessels could retain or discard IR/IU species at their option.

Response: The Council, through its IR/IU industry committee,

considered and rejected a proposal to provide a buffer between IR/IU

retention requirements and MRB amounts. The IR/IU industry committee

recommended, instead, that this issue be reexamined once the program is

underway and that possible solutions could be developed at that time if

necessary.

When an IR/IU species is closed to directed fishing, the IR/IU

program does not require a vessel operator to retain exactly the MRB

amount for that species. Rather, the program simply requires the

retention of all catch of that species up to the MRB amount in effect

for that species. A vessel operator who maintains a bycatch rate below

the MRB percentage in effect for an IR/IU species will avoid the

difficult scenario described in the comment. The avoidance of bycatch

is an underlying objective of the Magnuson-Stevens Act and one

objective of the IR/IU program is to encourage vessel operators to

simply avoid the harvest of IR/IU species when those species are closed

to directed fishing. To that end, NMFS is actively promoting the

development of more selective gear technologies and is assisting

industry efforts to identify and avoid areas with high bycatch rates.

NMFS believes that attempts should first be made to avoid excessive

bycatch of IR/IU species closed to directed fishing before retention

standards are relaxed to accommodate discards of such bycatch.

Comment 17: The 15-percent minimum utilization rate standard in the

proposed rule depends on accurate estimates of a vessel's total catch.

We are concerned that measurement error by observers in the calculation

of total catch of each IR/IU species may make a vessel accountable for

processing more fish than it actually caught. Due to the vagaries of

species composition sampling, an observer's estimate of total catch of

an IR/IU species during a specific haul may differ from the vessel's

actual catch by a significant percentage. Based on our experience with

the accuracy of species composition sampling, this ``phantom fish''

problem could occur to a significant degree.

Response: NMFS recognizes the problems associated with calculating

the total catch of each IR/IU species on a haul-by-haul basis. However,

the IR/IU program does not depend on observer estimates of total catch

of each IR/IU species for monitoring and enforcement of the 15-percent

minimum utilization rate. Instead, each processor is required to log

its total catch weight of each IR/IU species on a haul-by-haul basis.

NMFS logbooks will be revised to accommodate collection of this data.

When verifying compliance with the 15-percent minimum utilization rate,

a catcher/processor's logged round-weight catch of an IR/IU species

will be compared against the weight of products produced from that IR/

IU species.

At this point, NMFS has not established specific guidelines or

procedures for measurement of the round-weight catch of IR/IU species

on board vessels. Vessel operators are free to measure their round-

weight catch of each IR/IU species in the manner they determine to be

most appropriate to their circumstances. When observers are present,

vessel operators are free to use the observer's estimate of total

catch, or they may independently measure the round-weight catch of each

IR/IU species.

NMFS chose not to base monitoring and enforcement of the 15-percent

utilization standard on observer estimates of round-weight catch

because not all vessels have 100-percent observer coverage, and

observers, when present, may not sample every haul. If observer

estimates were used to monitor compliance with the IR/IU program, then

vessels without observer coverage would, in effect, be exempt from the

program. Nevertheless, NMFS may use observer data as well as any

additional information that may be available to verify the accuracy of

a vessel's logged round-weight catch of IR/IU species. The deliberate

under-logging of round-weight catch to evade minimum utilization

requirements is a violation of NMFS recordkeeping and reporting

requirements and would be subject to enforcement action.

Comment 18: As indicated in the EA/RIR/IRFA, implementation of the

IR/IU program requires parallel State of Alaska (State) regulations for

onshore processors. In the absence of parallel State regulations,

catcher vessels will be placed in an untenable position if onshore

processors refuse to accept their

[[Page 63886]]

catch and Federal regulations prohibit them from discarding at sea.

Therefore, implementation of the IR/IU program should be delayed until

State IR/IU regulations are in place.

Response: The State is currently developing a parallel IR/IU

program that would establish retention and utilization requirements for

onshore processors, and require onshore processors to accept deliveries

of IR/IU species. The Alaska Department of Fish and Game (ADF&G) has

indicated that under existing State statutes that prohibit roe

stripping and waste of pollock, the State has authority to implement

IR/IU regulations to govern onshore processing of pollock. ADF&G has

indicated that the State is proceeding with implementation of IR/IU

regulations to govern onshore processing of pollock that would be

effective January 3, 1998. However, ADF&G has indicated that parallel

IR/IU regulations to govern onshore processing of Pacific cod may not

be in place until mid-1998 because a statutory change is necessary

before the State can regulate onshore processing of Pacific cod.

At the September 1997 Council meeting, NMFS met with

representatives for catcher vessel operators and concluded that

parallel State regulations for pollock will address the concerns of the

catcher vessel fleet on an interim basis provided the State also

proceeds with parallel State regulations for Pacific cod. Catcher

vessel operators are most concerned about being able to deliver pollock

bycatch to processors that have not traditionally processed pollock in

the past. Catcher vessel operators indicate that they are much less

concerned about finding onshore markets for Pacific cod.

Comment 19: The EA/RIR/IRFA clearly concludes that adoption of

parallel IR/IU regulations by the State is critical to the success of

the program. The State, acting through the Commissioner of Fish and

Game, recently argued in Alaska Superior Court that regulations

allowing the roe stripping of salmon and discard of 100 percent of the

salmon carcasses were legal under the Alaska anti-waste statute

(Callaghan v. Alaska, No. 3AN-96-8963 Civ., Slip Op. (3d Super. Ct.

Alaska July 14, 1997)). In Callaghan, the State Attorney General

justified the discard of salmon citing the Commissioner of Fish and

Game's finding that harvesters ``might not harvest these salmon because

of lack of markets.'' In finding for the State, the Court relied in

part on a finding by the Commissioner of Fish and Game that ``catching

and processing the entire fish would result in a financial loss'' (Id.

at 8). In short, the State prevailed arguing that (1) it is not waste

to discard unmarketable fish, and (2) ADF&G and the State Attorney

General are justified in not enforcing the State of Alaska anti-waste

laws. We believe, therefore, that NMFS cannot reasonably conclude that

the State of Alaska will implement or enforce parallel IR/IU

regulations for onshore processors. Without implementation and

enforcement of parallel State regulations, the IR/IU program should be

disapproved.

Response: See response to comment 18. Throughout Council

development of the IR/IU program, the State has expressed its intent to

promulgate parallel IR/IU regulations for onshore processors. The State

was a principal proponent of the IR/IU program throughout the Council

process, and NMFS has no reason to believe that the State will fail to

follow through with its commitment to implement parallel IR/IU

regulations for onshore processors.

Comment 20: NMFS' ability to determine if the proposed IR/IU

program satisfies the law and meets the intent of the Council depends

on its ability to monitor and measure the extent to which vessels avoid

bycatch. However, the proposed program includes no such monitoring

mechanism. In fact, throughout the proposed amendment, and also the

proposed rule, limitations and difficulties associated with monitoring,

enforcement, and compliance with the program are prominent. There is no

explicit discussion of a monitoring system geared to assess the

efficacy of the program. Further, at the June 1997 Council meeting,

representatives of NMFS recognized that the program does not include

suitable methods by which to measure its success in meeting stated

intent or satisfying legal requirements.

This lack of a monitoring program is directly counter to the draft

regulations NMFS will soon propose to help Councils implement bycatch

reduction requirements. The proposed revisions to the guidelines for

Magnuson-Stevens Act national standards include the following section

for bycatch reduction requirements:

Implementation and monitor selected [bycatch reduction]

management measures. Effects of implemented measures should be

evaluated routinely. Monitoring systems should be established prior

to fishing under the selected management measures. Where applicable,

implementation plans should be developed and coordinated with

industry and other concerned organizations to identify opportunities

for cooperative data collection, coordinating data management for

cost efficiency and avoidance of duplicate effort.

Response: Monitoring and evaluation of the IR/IU program will be

accomplished primarily through the use of existing sources of data on

the catch, retention, and utilization of IR/IU species in the BSAI. The

groundfish fisheries of the BSAI are among the most extensively

monitored fisheries in the United States and are subject to the most

extensive observer coverage requirements of any fishery in the United

States. NMFS's groundfish monitoring program gathers data from a

variety of sources including observer reports, industry-submitted

weekly production reports, NMFS daily fishing logbooks, and ADF&G fish

tickets. These data sources will enable NMFS to assess the

effectiveness of the IR/IU program on a fleet-wide basis. Where

necessary, existing data collection programs are being adjusted to

accommodate the collection of data necessary for monitoring the IR/IU

program. For example, NMFS catcher vessel daily fishing logbook,

catcher/processor daily fishing logbook and mothership cumulative

production logbooks are being revised to accommodate the collection of

round-weight catch data for IR/IU species on a haul-by-haul basis.

Changes From the Proposed Rule

Four changes were made from the proposed rule in response to

comments:

1. A provision was added at Sec. 679.27(h) to allow for the discard

of previously caught fish.

2. The prohibition on discard of products from IR/IU species at

Sec. 679.27(e) was revised to allow the discard of products when

necessary to comply with a directed fishing closure.

3. The definition of ``fishing trip'' at Sec. 679.2 was revised to

specify that it applies to the IR/IU program as well as to directed

fishing closures.

4. The proposed rule contained separate utilization requirements

based on a fishing trip for catcher/processors and a reporting week for

motherships. In the final rule, these were combined into a single

utilization standard based on a fishing trip for both catcher/

processors and motherships.

Summary of the Final Rule and Guide to Compliance

The following section in question-and-answer format describes and

summarizes the requirements of the final rule and is intended to serve

as a compliance guide for vessel owners and operators.

[[Page 63887]]

Who Must Comply With IR/IU Regulations?

If you own or operate a vessel fishing for groundfish in the BSAI

or processing groundfish harvested in the BSAI, you must comply with

the IR/IU regulations regardless of your vessel's size, gear type, or

target fishery. Because the Magnuson-Stevens Act does not authorize

NMFS to regulate onshore processing of fish, these requirements do not

apply to onshore processors. Parallel regulations to extend IR/IU

requirements to onshore processors will be issued by the State of

Alaska.

Which Species Must Be Retained?

The IR/IU program defines four groundfish species as IR/IU species:

pollock, Pacific cod, rock sole, and yellowfin sole. Retention and

utilization requirements apply to pollock and Pacific cod beginning

January 3, 1998. The requirements will apply to rock sole and yellowfin

sole beginning January 1, 2003. The purpose of the 5-year delay for

rock sole and yellowfin sole is to provide industry with sufficient

time to develop more selective fishing techniques and/or markets for

these fish.

What Are the Retention Requirements for Catcher Vessels When

Directed Fishing Is Open?

The retention requirements for all vessels are set out in table

format at Sec. 679.27(c)(2). If you own or operate a catcher vessel,

and directed fishing for an IR/IU species is open, you must retain all

fish of that species brought on board your vessel until the fish are

lawfully transferred or sold to an authorized party such as a processor

operating with a Federal processor permit. This requirement applies to

all IR/IU species you have caught as well as all IR/IU species you have

received via transfer from another vessel.

What Are the Retention Requirements for Catcher Vessels When

Directed Fishing Is Closed?

If you own or operate a catcher vessel and an IR/IU species is

closed to directed fishing, you must retain all fish of that species up

to the MRB amount in effect for that species. If your catch of an IR/IU

species exceeds the MRB amount in effect for that species, your catch

in excess of the MRB amount must be discarded. Because the MRB amount

for a vessel is a running total based on the retained catch of species

open to directed fishing, you may find it necessary to discard excess

bycatch of an IR/IU species during the early part of a fishing trip and

may not subsequently encounter any additional bycatch of that IR/IU

species during the fishing trip. In such an instance, you would be in

compliance with the IR/IU program even though the percentage of that

IR/IU species in your delivery may be below the MRB and you discarded

catch of that species earlier in the fishing trip.

The simplest way to simultaneously comply with directed fishing

closures and the IR/IU retention requirements is to avoid excessive

bycatch of IR/IU species that are closed to directed fishing. If you

catch less than the MRB percentage for an IR/IU species, you simply

retain your entire catch of that species and avoid the difficulty

associated with calculating how much fish to discard. While NMFS

encourages vessel operators to avoid bycatch of IR/IU species that are

closed to directed fishing, at times avoidance may be difficult. Vessel

operators who frequently exceed the MRB amount in effect for an IR/IU

species are encouraged to develop appropriate catch measurement

techniques, such as measured fish-hold volumes or on-board scales. At

this point, NMFS has not established standards for measurement of catch

on catcher vessels and intends to seek input from industry on

appropriate and cost-effective measurement techniques.

What Are the Retention Requirements for Catcher/Processors When

Directed Fishing Is Open?

If you own or operate a catcher/processor and directed fishing for

an IR/IU species is open, you must retain a primary product from all

fish of that species brought on board your vessel until such products

are lawfully transferred to an authorized party. This includes all fish

you have caught as well as all fish you have received via transfer from

another vessel. You may use any primary product, except roe, to meet

this minimum retention requirement. The IR/IU program does not limit or

define the types of primary products that must be produced from each

IR/IU species, provided that all primary and ancillary products are

logged in your daily cumulative production logbook (DCPL). In addition,

whole fish may be considered a product for the purpose of this program

provided that they are logged as whole fish in your DCPL.

What Are the Retention Requirements for Catcher/Processors When

Directed Fishing Is Closed?

If you own or operate a catcher/processor and an IR/IU species is

closed to directed fishing, you must retain a primary product from all

fish of that species brought on board your vessel up to the point that

the round-weight equivalent of primary products from that species

equals the MRB amount for that species. The simplest way to meet this

requirement is to avoid bycatch of an IR/IU species that is closed to

directed fishing so that your production from that species does not

approach the MRB percentage in effect for that species.

To monitor your vessel's compliance, you must track, on a running

basis, both the round-weight equivalent of primary products from your

basis species, i.e., those species open to directed fishing, and the

round-weight equivalent of your primary products from the IR/IU species

closed to directed fishing. As long as the round-weight equivalent of

your primary products from the IR/IU species closed to directed fishing

is at or below the MRB amount in effect for that species, you must

retain a primary product from all catch of that species. If during the

course of a fishing trip you find that you have exceeded the MRB amount

for an IR/IU species, you are permitted to discard product from that

species, if necessary, to bring your operation into compliance with the

directed fishing closure. This is the only instance in which you are

permitted to discard products from IR/IU species.

What Is the Definition of a Fishing Trip?

The definition of a fishing trip used to monitor compliance with

the IR/IU program is the same definition of a fishing trip currently

used to monitor compliance with directed fishing closures. You are

engaged in a fishing trip from the time you begin or resume harvesting,

receiving, or processing groundfish in an area until: (1) You offload

or transfer all fish or fish product from your vessel; (2) you enter or

leave an area where a different directed fishing prohibition applies;

or (3) you come to the end of a weekly reporting period, whichever

comes first. This definition of fishing trip applies to catcher

vessels, catcher processors, and motherships.

What Are the Retention Requirements for Motherships?

The retention requirements for motherships and catcher/processors

are identical. No distinction is made between IR/IU species that you

have caught and IR/IU species you have received through transfer or

delivery from another vessel.

Under What Circumstances May IR/IU Species Be Released Before They

Are Brought on Board?

The intentional discard of IR/IU species prior to bringing them on

board

[[Page 63888]]

your vessel, such as bleeding codends or shaking fish off longlines, is

prohibited. However, NMFS recognizes that some escapement of fish from

fishing gear does occur in the course of fishing operations. Therefore,

incidental escapement of IR/IU species, such as fish squeezing through

mesh or accidently dropping off longlines, will not be considered a

violation unless the escapement is intentionally caused by action of

the vessel operator or crew.

What if I Must Bleed a Codend for the Safety of My Vessel?

The IR/IU program contains no exemption to allow the bleeding of

codends for safety reasons. NMFS urges vessel operators to fish in a

cautious manner when their fish holds are near capacity to avoid

catching more fish than can be retained safely. If you believe that

circumstances require you to bleed a codend or otherwise discard IR/IU

species for the safety of your vessel, you must log the amount of

discard in your daily fishing logbook (DFL) and describe the

circumstances surrounding the incident. Failure to log such an incident

is a violation of NMFS recordkeeping and reporting requirements. NMFS

will review such incidents on a case-by-case basis with consideration

given to the extent of the violation and possible mitigating

circumstances.

Must I Retain Bycatch of Decomposed Fish Previously Discarded by

Other Operations?

You may discard any bycatch of previously discarded fish. When you

encounter such fish, they should not be recorded in your logbook as

part of your round-weight catch of an IR/IU species. Discards of

previously discarded fish should be logged using discard code 97, which

is for discards of previously discarded, i.e., decomposed, fish taken

with trawl gear in current fishing efforts.

May I Discard Any Products Produced From IR/IU Species?

Discard of retained products from an IR/IU species is prohibited

unless discarding of product is necessary to comply with a directed

fishing closure.

May I Discard Fish or Products Transferred From Another Vessel?

The retention requirements of the IR/IU program apply to all fish

brought on board your vessel, regardless of whether they were harvested

by your vessel or transferred from another vessel. You are prohibited

from discarding any products produced from IR/IU species that were

transferred to you from another vessel.

May I Use IR/IU Species as Bait?

IR/IU species may be used as bait provided the bait is physically

attached to authorized fishing gear when deployed. Dumping IR/IU

species as loose bait (e.g., chumming) is prohibited.

How Is the 15-Percent Minimum Utilization Rate Calculated When

Directed Fishing Is Open?

If directed fishing for an IR/IU species is open, your total weight

of retained or lawfully transferred products produced from IR/IU

species harvested or received by your vessel during a fishing trip must

equal or exceed 15-percent of your round-weight catch of that species

during the same fishing trip.

How Is the 15-Percent Minimum Utilization Rate Calculated When

Directed Fishing Is Closed?

When directed fishing for an IR/IU species is closed, your total

weight of retained or lawfully transferred products produced from IR/IU

species harvested or received by your vessel during a fishing trip must

equal or exceed either 15-percent of the MRB amount in effect for that

species or 15-percent of the round-weight catch of that species,

whichever is lower. You are only required to utilize those fish that

you are required to retain under the retention requirements of the IR/

IU program. For example, if you have minimal bycatch of an IR/IU

species closed to directed fishing (below the MRB amount), your total

weight of retained products must equal or exceed 15-percent of your

round-weight catch of that species. If your bycatch of an IR/IU species

closed to directed fishing is high enough that you are forced to

discard a portion of your catch to avoid exceeding the MRB amount, the

15-percent utilization rate would be applied against the MRB amount and

not against your total catch of that species prior to discarding. You

must simultaneously comply with both the retention and utilization

requirements of the IR/IU program. Compliance with one standard in the

absence of the other would be a violation.

How Do Utilization Requirements Differ Between Catcher/Processors

and Motherships?

The only difference between the utilization requirements for

catcher/processors and motherships is that the 15-percent minimum

utilization rate is applied during the course of a fishing trip for

catcher/processors and during the course of a reporting week for

motherships. For the purpose of the IR/IU program, NMFS has defined the

term ``fishing trip'' in the same manner as it is defined for the

purpose of monitoring directed fishing closures.

How Do I Calculate My Round-Weight Catch of IR/IU Species?

If you operate a catcher vessel or catcher processor, you must

record the round-weight catch of all IR/IU species on a haul-by-haul

basis. If you operate a mothership, you must record the round weight of

all IR/IU species received on a delivery-by-delivery basis. If you have

an observer aboard your vessel, you are free to use the observer's

estimates of round-weight catch of each IR/IU species, but you are not

required to do so. At this point, NMFS has not established specific

guidelines or procedures for measurement of the round-weight catch of

IR/IU species on board vessels. Vessel operators are free to measure

their round-weight catch of each IR/IU species in the manner they

determine to be most appropriate to their circumstances. However, NMFS

may verify the accuracy of a vessel's reported round-weight catch of

IR/IU species by comparison to observer data and by any other means

that may be available. Deliberate under-logging of the round-weight

catch of an IR/IU species is a violation of NMFS recordkeeping and

reporting requirements and is subject to enforcement action.

What Changes to Recordkeeping and Reporting Requirements Are

Included in the IR/IU Program?

This final rule includes changes to existing recordkeeping

requirements to aid the monitoring and enforcement of the IR/IU

program. Beginning January 3, 1998, all catcher vessels and catcher/

processors that are currently required to maintain NMFS logbooks are

required to log the round-weight catch of pollock and Pacific cod in

the NMFS catcher vessel DFL or catcher/processor DCPL on a haul-by-haul

or set-by-set basis. Motherships are required to log the receipt round

weight of pollock and Pacific cod in the mothership DCPL on a delivery-

by-delivery basis. Beginning January 1, 2003, this requirement will

extend to rock sole and yellowfin sole. These changes are necessary to

provide vessel operators and enforcement agents with round-weight

information for each IR/IU species in order to monitor compliance with

the IR/IU program.

Additional Technical Changes to Existing Regulations

The definition of ``fishing trip'' at Sec. 679.2 is revised to

specify that it applies to the IR/IU program as well as to directed

fishing closures. This change

[[Page 63889]]

is necessary to clarify the meaning of the term ``fishing trip'' as it

applies to the IR/IU program.

The definition of ``round weight or round-weight equivalent'' at

Sec. 679.2 is revised by restricting the definition to ``round-weight

equivalent''. The term ``round weight'' is already defined by NMFS in

regulations appearing at 50 CFR part 600 and does not need to be re-

defined in regulations at Sec. 679.2.

The prohibition on discard of pollock product at

Sec. 679.20(g)(5)(ii) is revised to allow the discard of product when

necessary to comply with a directed fishing closure. This change is

necessary to prevent a conflict with the regulations at Sec. 679.20(i)

that implement the IR/IU program.

Regulations at Sec. 679.50 (c) and (d), which specify observer

coverage requirements for motherships based on ``round weight or round-

weight equivalent'' of groundfish processed, are revised by removing

the term ``round weight.'' Observer coverage requirements for

motherships during a calendar month would be based only on the round-

weight equivalent of groundfish processed. This change is necessary

because the terms ``round weight'' and ``round-weight equivalent''

would no longer be synonymous under the final rule.

Classification

The Administrator, Alaska Region, NMFS, determined that Amendment

49 is necessary for the conservation and management of the groundfish

fishery of the BSAI and that it is consistent with the Magnuson-Stevens

Act and other applicable laws.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act. The collection of this information has

been approved by the Office of Management and Budget, OMB Control

Number 0648-0213.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with a collection of information, subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

Public comment is sought regarding: Whether this collection of

information is necessary for the proper performance of the functions of

the agency, including whether the information has practical utility;

the accuracy of the burden estimate; ways to enhance the quality,

utility, and clarity of the information to be collected; and ways to

minimize the burden of the collection of information, including through

the use of automated collection techniques or other forms of

information technology.

An RIR was prepared for this final rule that describes the

management background, the purpose and need for action, the management

action alternatives, and the social impacts of the alternatives. The

RIR also estimates the total number of small entities affected by this

action and analyzes the economic impact on those small entities.

An FRFA has been prepared for this action and consists of the EA/

RIR/FRFA and the preambles to the proposed and final rules implementing

this action. The analysis examines the economic effects of this final

rule by fishery and gear type and makes the following conclusions: (1)

The economic effects of the final rule on vessels using longline, jig,

and pot gear would not be significant; (2) the economic effects of the

final rule on trawl catcher vessels and shore-based processors would

not be significant; and (3) the economic effects of the final rule on

trawl catcher/processor operations may or may not be significant

depending upon the fishery as well as the size and processing capacity

of the vessel in question.

Under the category of trawl catcher/processors, the economic

effects on vessels participating in the pollock, sablefish, Greenland

turbot, rockfish, and Atka mackerel fisheries would not be significant.

However, the economic effects on vessels participating in the Pacific

cod, rock sole, yellowfin sole, flathead sole and ``other'' flatfish

fishery would be significant. The reason is that the bycatch of IR/IU

species in these fisheries is substantial. The quantity of additional

retained catch that operators in these fisheries would be required to

handle under the final rule would impose significant operational costs

on these fisheries, taken as a whole. This is especially true for

products for which markets are limited or undeveloped (e.g., small

Pacific cod, male rock sole, and H&G pollock). Current prices for these

products may be insufficient to cover the costs of their production.

In general, the impacts on any individual factory trawler operation

would vary inversely with the size and configuration of the vessel,

hold capacity, processing capability, markets and market access, as

well as the specific composition and share of the total catch of the

four IR/IU species. The burden would tend to fall most heavily upon the

smallest, least diversified operations among the current fleet. In

addition, the groundfish vessel moratorium, proposed license limitation

program, and U.S. Coast Guard load-line requirements severely limit

reconstruction to increase vessel size and/or processing capacity.

These restrictions are expected to further limit the ability of smaller

catcher/processors to adapt to the proposed IR/IU program.

NMFS data indicate that in 1995, 44 at-sea processors participated

in the BSAI Pacific cod trawl fishery (4 motherships and 40 catcher/

processors); 38 at-sea processors participated in the BSAI rock sole

fishery (2 motherships and 36 catcher/processors); 48 at-sea processors

participated in the BSAI yellowfin sole fishery (4 motherships and 44

catcher/processors); 19 catcher/processors participated in the flathead

sole fishery; and 23 at-sea processors participated in the ``other''

flatfish fishery (1 mothership and 22 catcher/processors).

In selecting its preferred alternative for Amendment 49, the

Council minimized the economic impact of the IR/IU program on small

entities in a variety of ways. First, the Council adopted 5-year delay

in the effective date for rock sole and yellowfin sole to provide

industry with sufficient time to develop more selective fishing

techniques and/or markets for fish that are currently being discarded.

Second, the Council rejected utilization alternatives that would have

limited product forms or placed limits on fishmeal production, in order

to allow industry more flexibility in complying with the utilization

requirements of the IR/IU program. Finally, the Council rejected

monitoring alternatives that would have imposed substantial costs in

the form of increased observer coverage requirements or required a full

time compliance monitor aboard all vessels. For reasons set forth in

this preamble above, alternatives that would have further minimized

economic impacts on small entities were rejected.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

The Administrator, Alaska Region, NMFS determined that fishing

activities conducted under this rule would not affect endangered and

threatened species listed or critical habitat designated pursuant to

the Endangered Species Act in any manner not considered in prior

consultations on the groundfish fisheries of the BSAI.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

[[Page 63890]]

Dated: November 26, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 679 is amended

as follows:

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

1. The authority citation for 50 CFR part 679 continues to read as

follows:

Authority: 16 U.S.C. 773 et seq, 1801 et seq., and 3631 et seq.

2. In Sec. 679.2, the definitions of ``IR/IU'' and ``IR/IU

species'' are added in alphabetical order, paragraph (1) in the

definition of ``Fishing trip'' is revised and the definition and

heading of ``Round weight or round-weight equivalent'' are revised to

read as follows:

Sec. 679.2 Definitions.

* * * * *

Fishing trip means: (1) With respect to groundfish directed fishing

closures or the IR/IU program, an operator of a vessel is engaged in a

fishing trip from the time the harvesting, receiving, or processing of

groundfish is begun or resumed in an area until:

(i) The effective date of a notification prohibiting directed

fishing in the same area under Sec. 679.20 or Sec. 679.21;

(ii) The offload or transfer of all fish or fish product from that

vessel;

(iii) The vessel enters or leaves an area where a different

directed fishing prohibition applies; or

(iv) The end of a weekly reporting period, whichever comes first.

* * * * *

IR/IU means the improved retention/improved utilization program set

out at Sec. 679.27.

IR/IU species means any groundfish species that is regulated by a

retention or utilization requirement set out at Sec. 679.27.

* * * * *

Round-weight equivalent means the weight of groundfish calculated

by dividing the weight of the primary product made from that groundfish

by the PRR for that primary product as listed in Table 3 of this part,

or, if not listed, the weight of groundfish calculated by dividing the

weight of a primary product by the standard PRR as determined using the

best available evidence on a case-by-case basis.

* * * * *

3. In Sec. 679.5, paragraphs (c)(3)(ii)(G) and (e)(2)(ii)(F) are

added to read as follows:

Sec. 679.5 Recordkeeping and reporting.

* * * * *

(c) * * *

(3) * * *

(ii) * * *

(G) The round-weight catch of pollock and Pacific cod.

* * * * *

(e) * * *

(2) * * *

(ii) * * *

(F) The receipt round weight of pollock and Pacific cod.

* * * * *

4. In Sec. 679.20, paragraph (g)(5)(ii) is revised to read as

follows:

Sec. 679.20 General Limitations.

* * * * *

(g) * * *

(5) * * *

(ii) No discard of processed product. Any pollock product that has

been processed may not be discarded at sea unless such discarding is

necessary to meet other requirements of this part.

* * * * *

5. Section 679.27 is added to subpart B to read as follows:

Sec. 679.27 Improved Retention/Improved Utilization Program.

(a) Applicability. The owner or operator of a vessel that is

required to obtain a Federal fisheries or processor permit under

Sec. 679.4 must comply with the IR/IU program set out in this section

while fishing for groundfish in the BSAI, fishing for groundfish in

waters of the State of Alaska that are shoreward of the BSAI, or when

processing groundfish harvested in the BSAI.

(b) IR/IU species. The following species are defined as ``IR/IU

species'' for the purposes of this section:

(1) Pollock.

(2) Pacific cod.

(3) Beginning January 1, 2003, rock sole.

(4) Beginning January 1, 2003, yellowfin sole.

(c) Minimum retention requirements--(1) Definition of retain on

board. Notwithstanding the definition at 50 CFR 600.10, for the purpose

of this section, to retain on board means to be in possession of on

board a vessel.

(2) The following table displays minimum retention requirements by

vessel category and directed fishing status:

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

You must retain on board

If you own or operate a And until lawful transfer

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

(i) Catcher vessel................................ (A) Directed fishing for an all fish of that species

IR/IU species is open. brought on board the vessel.

(B) Directed fishing for an all fish of that species

IR/IU species is prohibited. brought on board the vessel

up to the MRB amount for

that species.

(C) Retention of an IR/IU no fish of that species.

species is prohibited.

(ii) Catcher/ processor........................... (A) Directed fishing for an a primary product from all

IR/IU species is open. fish of that species brought

on board the vessel.

(B) Directed fishing for an a primary product from all

IR/IU species is prohibited. fish of that species brought

on board the vessel up to

the point that the round-

weight equivalent of primary

products on board equals the

MRB amount for that species.

(C) Retention of an IR/IU no fish or product of that

species is prohibited. species.

(iii) Mothership.................................. (A) Directed fishing for an a primary product from all

IR/IU species is open. fish of that species brought

on board the vessel.

(B) Directed fishing for an a primary product from all

IR/IU species is prohibited. fish of that species brought

on board the vessel up to

the point that the round-

weight equivalent of primary

products on board equals the

MRB amount for that species.

(C) Retention of an IR/IU no fish or product of that

species is prohibited. species.

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

[[Page 63891]]

(d) Bleeding codends and shaking longline gear. Any action intended

to discard or release an IR/IU species prior to being brought on board

the vessel is prohibited. This includes, but is not limited to bleeding

codends and shaking or otherwise removing fish from longline gear.

(e) At-sea discard of product. Any product from an IR/IU species

may not be discarded at sea, unless such discarding is necessary to

meet other requirements of this part.

(f) Discard of fish or product transferred from other vessels. The

retention requirements of this section apply to all IR/IU species

brought on board a vessel, whether harvested by that vessel or

transferred from another vessel. At-sea discard of IR/IU species or

products that were transferred from another vessel is prohibited.

(g) IR/IU species as bait. IR/IU species may be used as bait

provided that the deployed bait is physically secured to authorized

fishing gear. Dumping of unsecured IR/IU species as bait (chumming) is

prohibited.

(h) Previously caught fish. The retention and utilization

requirements of this section do not apply to incidental catch of dead

or decomposing fish or fish parts that were previously caught and

discarded at sea.

(i) Minimum utilization requirements. If you own or operate a

catcher/processor or mothership, the minimum utilization requirement

for an IR/IU species harvested in the BSAI is determined by the

directed fishing status for that species according to the following

table:

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

then your total weight of retained

or lawfully transferred products

If * * * produced from your catch or receipt

of that IR/IU species during a

fishing trip must * * *

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

(1) directed fishing for an IR/IU species is open, equal or exceed 15 percent of the

round-weight catch or round-weight

delivery of that species during

the fishing trip.

(2) directed fishing for an IR/IU species is prohibited, equal or exceed 15 percent of the

round-weight catch or round-weight

delivery of that species during

the fishing trip or 15 percent of

the MRB amount for that species,

whichever is lower.

(3) retention of an IR/IU species is prohibited, equal zero.

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

6. In Sec. 679.50, paragraphs (c)(1)(i), (c)(1)(ii), (c)(3)

introductory text, (d)(1), and (d)(2) are revised to read as follows:

Sec. 679.50 Groundfish Observer Program applicable through December

31, 1997.

* * * * *

(c) * * *

(1) * * *

(i) A mothership of any length that processes 1,000 mt or more in

round-weight equivalent of groundfish during a calendar month is

required to have an observer aboard the vessel each day it receives or

processes groundfish during that month.

(ii) A mothership of any length that processes from 500 mt to 1,000

mt in round-weight equivalent of groundfish during a calendar month is

required to have an observer aboard the vessel at least 30 percent of

the days it receives or processes groundfish during that month.

* * * * *

(3) Assignment of vessels to fisheries. At the end of any fishing

trip, a vessel's retained catch of groundfish species or species groups

for which a TAC has been specified under Sec. 679.20, in round-weight

equivalent, will determine to which fishery category listed under

paragraph (c)(2) of this section the vessel is assigned.

* * * * *

(d) * * *

(1) Processes 1,000 mt or more in round-weight equivalent of

groundfish during a calendar month is required to have an observer

present at the facility each day it receives or processes groundfish

during that month.

(2) Processes 500 mt to 1,000 mt in round-weight equivalent of

groundfish during a calendar month is required to have an observer

present at the facility at least 30 percent of the days it receives or

processes groundfish during that month.

* * * * *

[FR Doc. 97-31711 Filed 12-2-97; 8:45 am]

BILLING CODE 3510-22-P