Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Compensation for Collecting Resource Information

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 98050115-8115-01; I.D. 032498A]

RIN 0648-AK86

Fisheries Off West Coast States and in the Western Pacific;

Pacific Coast Groundfish Fishery; Compensation for Collecting Resource

Information

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed emergency rule; request for comments.

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

SUMMARY: This action, authorized by the Magnuson-Stevens Act, proposes

provisions by which a vessel owner or operator who has collected

resource information according to a NMFS-approved protocol may be

compensated with the opportunity to harvest fish in excess of current

vessel limits and/or outside other restrictions. This action is

intended to improve the types and amounts of scientific information

available for use in stock assessments and management of the Pacific

coast groundfish fishery. It is necessary to implement this action

under the Magnuson-Stevens Act emergency rulemaking authority so that

NMFS may contract with commercial fishing vessels to conduct resource

surveys during the summer of 1998. The Pacific Fishery Management

Council (Council) is considering an amendment to the Pacific Coast

Groundfish Fishery Management Plan (PCGFMP) that would continue this

compensation initiative beyond 1998.

DATES: Comments will be considered if received on or before June 5,

1998.

ADDRESSES: Send comments to William Stelle, Jr., Administrator,

Northwest Region, (Regional Administrator) NMFS, 7600 Sand Point Way

NE., Seattle, WA 98115; or William T. Hogarth, Administrator, Southwest

Region, (Regional Administrator) NMFS, 501 West Ocean Blvd., Suite

4200, Long Beach, CA 90802-4213. Other information relevant to this

proposed emergency rule is available for public review during business

hours at the Office of the Administrator, Northwest Region, NMFS.

Copies of the environmental assessment/regulatory impact review are

also available from that address. Send comments regarding the burden

estimate or any other aspect of the collection-of-information

requirements in this proposed emergency rule, including suggestions for

reducing the burden, to one of the NMFS addresses and to the Office on

Information and Regulatory Affairs, Office of Management and Budget

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

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

SUPPLEMENTARY INFORMATION: NMFS is proposing an emergency rule and

requesting comments on the proposal to allow owners or operators of

vessels that collect resource information to be compensated with the

opportunity to harvest fish in excess of current vessel limits and/or

outside other restrictions [hereinafter ``compensated with fish'']. The

Council recommended at its November 1997 meeting in Portland, OR, that

NMFS proceed with this proposal immediately so that NMFS may so

contract with commercial fishing vessels to conduct resource surveys

during the summer of 1998.

The fishing industry, environmental groups, and NMFS have actively

explored various ways to expand and improve information used in

management of the groundfish fishery and to involve the fishing

industry in gathering that information. Part of this effort involves

finding more creative means of compensating a fishing vessel's owner or

operator with fish for participating in collecting resource

information. On October 11, 1996, the Magnuson-Stevens Fishery

Conservation and Management Act (Magnuson-Stevens Act) was amended to

authorize the Secretary of Commerce (Secretary) to use the private

sector to provide vessels, equipment, and services necessary to survey

fishery resources and to pay for these surveys through the sale of fish

taken during the survey or, if the quality or amount of fish is not

adequate, on a subsequent, commercial fishing trip (sec. 402(e)).

Section 303(b)(11) of the Magnuson-Stevens Act enables the Secretary to

``reserve a portion of the allowable biological catch of the fishery

for use in scientific research.'' A vessel that is chartered by NMFS to

conduct resource surveys becomes a ``scientific research vessel'' as

defined at 50 CFR 600.10, and it may not conduct commercial fishing on

the same trip during which a resource survey is conducted.

Background

These provisions must be implemented as quickly as possible in

order to include compensation with fish as a component of contracts

NMFS will award to commercial fishing vessels to conduct resource

surveys during the summer of 1998. Stock assessments for the Dover

sole/thornyhead/trawl-caught sablefish (DTS) complex are controversial

and have resulted in serious concern over the amount and accuracy of

survey data. NMFS is committed to addressing these concerns. However,

Federal fiscal constraints have precluded gathering the information

needed. This is further compounded by the unavailability of the NOAA

ship Miller Freeman, the principle vessel used for conducting resource

surveys in this fishery, during much of 1998. Implementation of these

provisions would enable NMFS to expand sampling in the annual slope

survey which provides data for the stock assessments for these and

other groundfish species. There is inadequate time to amend the PCGFMP

to provide for using fish as compensation (and subtracting the

compensation fish from acceptable biological catch (ABC)) before the

slope survey is scheduled to begin on August 1, 1998. Therefore, NMFS

is proposing this rule under the Secretary's emergency rulemaking

authority of the Magnuson-Stevens Act so that these provisions may be

implemented in time to support the 1998 slope survey. Concurrently, the

Council is preparing an amendment to the PCGFMP for later

implementation.

[[Page 27036]]

Compensation for a Vessel Conducting a Resource Survey

The Magnuson-Stevens Act authorizes the Secretary, in consultation

with the Council and the interested public, to structure competitive

solicitations by which a vessel's owner or operator may compete for a

contract with NMFS to conduct a resource survey. Resource surveys

generally are conducted from chartered fishing vessels, chartered

university vessels, and dedicated NOAA vessels. In a resource survey,

all samples (fish) are collected according to a specified research plan

or protocol. NMFS distinguishes survey activities by a scientific

research vessel from commercial fishing activities according to a

process of acknowledging scientific research described at 50 CFR

600.745(a). NMFS frequently uses this mechanism to conduct surveys from

chartered fishing vessels, and, in some cases, some of the sample has

been retained by the vessel owner/operator for sale to reduce waste and

to defray some of the costs of the charter. However, any additional

harvest taken on a subsequent, commercial trip as payment for the

resource survey would not be considered scientific research, and thus,

was not authorized under the old provisions of the Magnuson-Stevens

Act.

The new provisions of the Magnuson-Stevens Act provide the

authority to go beyond allowing the retention and sale of fish caught

during the course of a resource survey by providing compensation

through the opportunity to harvest fish in excess of current vessel

limits and/or outside of other restrictions. This rule proposes to

authorize such ``compensation fishing'' through the issuance of an

exempted fishing permit (EFP) in the Pacific Coast groundfish fishery,

which would enable the vessel to exceed trip limits (and/or to be

exempt from other specified management restrictions) so that the

compensation amount could be achieved. The compensation EFP would

include terms and conditions that would limit the authorized

activities. Conditions for disposition of bycatch or any excess catch

and for reporting the value of the amount landed and other appropriate

terms and conditions would be specified in the EFP. If the PCGFMP is

amended, it is anticipated that compensation fishing would occur no

later than the end of September of the year after the survey occurred.

Compensation fishing must take place during the period specified in the

EFP and must be conducted according to the terms and conditions of the

EFP. The compensation EFP may also require the vessel owner or operator

to keep separate records of compensation fishing conducted after the

survey is completed and to submit them to NMFS within a specified

period of time after the compensation fishing is completed. NMFS and

the States of Washington, Oregon, and California may need to modify

their catch reporting systems, if necessary, so that fish taken under

the compensation EFP are counted separately from commercial landings.

Process

The process incorporates selection of commercial vessels to be used

to conduct the resource surveys, issuance of compensation EFPs to

provide for compensation with fish, and adjustment of the ABC to

account for the compensation fish used.

Competitive Offers

NMFS may initiate a competitive solicitation (request for

proposals, or RFP) to select vessels to conduct resource surveys that

use fish as full or partial compensation. The RFP would be publicized

in the Commerce Business Daily and would specify factors that NMFS

would use in evaluating the proposals. Vessel owners would be expected

to submit offers to conduct the resource survey for a combination of

dollars and compensation fish.

Consultation

At a Council meeting, NMFS would consult with the Council and

receive public comment on upcoming resource surveys to be conducted

with groundfish used as whole or partial compensation. For each

proposal, NMFS would present (1) the maximum number of vessels expected

or needed to conduct the survey, (2) an estimate of the species and

amount of fish likely to be needed to compensate the vessel, (3) when

the survey and the compensation fish would be taken, and (4) the year

in which the compensation fish would be deducted from the ABC before

determining the harvest guideline (HG) or quota. This is, in effect,

equivalent to NMFS presenting a compensation EFP application to the

Council for the compensation amounts. In general, compensation fish

should be similar to surveyed species, but there may be reasons to

provide compensation with healthier, more abundant, less restricted, or

more easily targeted species. For example, NMFS may decline to pay a

vessel with species that are, or are expected to be, overfished, that

are subject to overfishing, or that are unavoidably caught with species

that are overfished or subject to overfishing. NMFS may also want to

take into account other factors such as expected discards and

incidental catches of other species. If the Council does not approve

the proposal to use fish as compensation to pay for a resource survey,

NMFS would not use fish, other than fish taken during the scientific

research, as compensation for that survey.

Awarding the Contract

NMFS would negotiate and award the resource survey contracts

in accordance with normal Federal procurement procedures. The

contract would include any conditions and limits on compensation

fishing, including a requirement to carry on board (1) a letter of

acknowledgment of research signed by the Regional Administrator or

designee, while conducting any resource survey, and (2) the

compensation EFP while conducting compensation fishing and for a period

of at least 15 days after the end of any applicable cumulative trip

limit period in which compensation fishing occurred.

Retention of Samples

All fishing on a resource survey trip would be required to be

conducted according to scientific protocol and would be

considered scientific research. However, some fish caught while

conducting the survey could be retained and sold as compensation for

the vessel's participation. Retention of samples for sale would be at

the discretion of the chief scientist aboard, who would consult with

the vessel captain. Collection of scientific information and samples

would be the highest priority and might interfere with the vessel's

ability to retain market-quality fish.

Issuance of the Compensation EFP

Upon successful completion of the resource survey and determination

of the amount and/or value of the survey sample that was retained for

sale as payment for conducting the survey, NMFS would issue a

compensation EFP to the owner or operator of the vessel if full

compensation has not been achieved by the cash payment and retention of

the survey sample. The compensation EFP would allow the vessel an

opportunity to exceed the current commercial fishing limits by the

total amount of compensation fish needed. The amount of compensation

fish needed is the amount of fish specified in the contract less the

amount and/or value of the survey sample retained for sale. The

compensation EFP

[[Page 27037]]

also would exempt the vessel from other specified management measures.

Accounting for Compensation Fish

Because the species and amounts of fish used as compensation would

not be determined until the contract is awarded, it may not be possible

to deduct the amount of compensation fish from the ABC or HG in the

year that the fish are caught. Even if this could be done, it would

cause great confusion with the many allocations and limits that were

set before the compensation amounts were known. NMFS, therefore,

proposes that the compensation fish be deducted from the ABC the year

after they are caught. During the annual specification process (50 CFR

660.321(b)), NMFS would advise the Council of the total amount of fish

caught during the year as compensation for conducting a resource

survey, which then would be deducted from the following year's ABCs

before setting the HGs or quotas.

Compensation for a Commercial Vessel Collecting Resource

Information--an EFP With a Compensation Clause

NMFS also intends to conduct smaller-scale cooperative projects on

vessels that are operating in the commercial fishery. This type of

activity would not be considered scientific research under 50 CFR

600.745(a) because it would not be conducted by a scientific research

vessel, even though the vessels would be collecting resource

information according to strict scientific standards approved by NMFS.

For small-scale cooperative projects, NMFS could issue EFPs to fishing

vessels collecting the resource information. The EFP would require the

vessel to conduct specific activities and allow it to retain and sell a

limited amount of fish above the amount it could take under its regular

trip limit. After the resource information has been obtained, the EFP

could authorize the vessel to sell the fish that were in the sample.

This would be a standard EFP, issued under the procedures at 50 CFR

600.745(b). Fish caught under this EFP would be counted against the

ABCs and HGs or quotas in the year they are caught.

In some circumstances, NMFS might want to allow the vessel to

harvest slightly more fish than necessary for the particular project.

(For the sablefish depth-specific sampling EFP expected in 1998, a

vessel would be able to retain the sample plus a modest compensation

amount, no larger than the size of the sample, above its normal trip

limits. Samples in these cases generally would be expected to involve

less than 500-1,500 lb (227-680 kg) of fish per vessel per month. The

extra fish would compensate the vessel for the extra work involved in

collecting the samples, may encourage vessels to participate in

surveys, and would utilize more of the fish taken during the surveys

that is surplus to sampling needs. NMFS could propose the amount of

fish that would be used as compensation, or the EFP applicant could

propose an amount in the EFP application. In these cases, when NMFS

announces receipt of the EFP application and requests comments as

required under 50 CFR 600.745(b), NMFS would also announce a window

period during which vessels would have an opportunity to submit EFP

applications. NMFS contemplates two ways of issuing such EFPs: First,

the EFPs could be issued to individuals implementing a protocol

approved by NMFS. NMFS would consider the qualified applicants, issue

EFPs to all of them, select participation by lottery, issue EFPs to the

first applicants, or use other impartial selection methods. Second,

NMFS could issue the EFP to a NMFS element, or a state or other Federal

research agency, and the research agency's proposal would include an

impartial way of selecting fishing vessel participants that would

receive individual EFPs under the umbrella EFP held by the research

agency.

The following analysis focuses on the use of compensation fishing

in the context of chartering vessels to conduct resource surveys

because the issues and impacts are of a much greater magnitude than

those involved in an EFP with a compensation clause.

Biological Impacts

The biological impacts of using fish as compensation would be

expected to be neutral in the short term and positive in the long

term. In the short term, the amount of fish used as compensation is

intended to be within the ABC, and therefore, would be within current

acceptable biological levels. In general, NMFS would be most likely to

compensate the owner or operator of a vessel with identical or similar

species to those taken in the resource survey. However, NMFS may

decline to compensate a vessel with certain species, particularly

stocks that are (or are expected to be) overfished, subject to

overfishing, or have bycatch that are overfished (or are expected to

be) or are subject to overfishing. In the long term, the additional

information that is gathered because NMFS is able to compensate vessels

with fish will provide more and better data for use in stock

assessments, which should result in better management of the stock and

less likelihood of overfishing.

Socio-economic Impacts

The amount of the compensation fish (as a percentage of the ABC)

would depend on the value of the compensation species and the cost of

the survey. The cost of the survey is relatively fixed, regardless of

the abundance and value of the species surveyed. The contract for an

extensive survey (e.g., 2 vessels for 60 days at sea each), such as the

current NMFS triennial trawl survey, would probably cost less than

$450,000, under 0.5 percent of the landed value of all Pacific coast

groundfish, 590 million, or approximately 1 percent of the $45 million

value of the 1996 fisheries for the Dover sole, thornyheads, trawl-

caught sablefish complex (DTS). A smaller scale survey targeted on

nearshore flatfish (e.g., Petrale sole, English sole, rex sole) would

cost close to $175,000, 2.5 percent of the value of this $7 million

flatfish fishery. However, not all components of the groundfish fishery

are useful as compensation fish. Only those groundfish species for

which there is a constraining trip limit, season, or other management

restriction would be desirable targets as compensation because a vessel

is not limited in its catch of other groundfish species. Thus, the

above comparison that is most relevant to this discussion is the one

for the DTS complex. An unfortunate aspect is that most depressed

stocks (such as Pacific ocean perch) cannot afford an allocation of

compensation fish, while most healthy stocks (like English sole) have

no trip limits or allocations that would be desirable compensation.

These considerations do not diminish the utility of using fish as

compensation, but they do limit the range of species that could be

considered as payment.

Vessels engaged in extended resource surveys may not have an

adequate opportunity to take their monthly commercial trip limit. The

contract and EFP may address the possibility of allowing the take of a

monthly trip limit outside the normal period as one of the activities

that might be provided as compensation for conducting the survey.

The amount of compensation fish awarded to a survey vessel would be

deducted from the subsequent year's ABC. If compensation fish comprise

a large proportion of an HG or quota, then potentially trip or bag

limits for that species could be lowered, or other constraints on the

fishery could be necessary. However, the amounts used as compensation

are expected to be less

[[Page 27038]]

than 5 percent of an ABC, well within the range of uncertainty

associated with ABCs, inseason catch monitoring, and trip limit

derivations. Therefore, it is not likely that awarding fish for

compensation would result in lower trip limits or additional or earlier

restrictions, although potentially this could occur.

Because the amount of fish used for compensation would be

subtracted ``off the top'' of the ABC, the loss of compensation fish

would be shared among all sectors and vessels (commercial,

recreational, and tribal) in the fishery.

Use of compensation fish would reduce the Federal outlay of

capital, although it would increase the Federal workload by adding

additional EFP procedures and potentially complicating the

determination of acceptable charter offers for resource surveys.

Use of fish as compensation for conducting resource surveys should

increase the participation and interest by members of

the fishing industry, many of whom have been skeptical of NMFS's

data and survey procedures. The resulting cooperation between industry

and government would provide scientists with valuable guidance from

veteran fishers and would provide industry with first-hand insight into

scientific sampling procedures.

A survey vessel would receive an extra financial benefit under this

proposed process; however, the recipient and level of the benefit would

be determined through a competitive process.

Using fish as compensation would enable more data to be gathered

than would otherwise be possible. This should lead to better stock

assessments and a better long-term prognosis for a sustainable fishery

and thus contribute to stability in the fishing industry and in the

resources upon which the industry depends.

Classification

This emergency rule has been determined to be not significant for

purposes of Executive Order 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities as follows:

NMFS has established standards for determining whether an action

will have a significant economic impact on a substantial number of

small entities. NMFS has determined that, in general, a substantial

number of small entities would be 20 percent of those small entities

affected by the rule. Economic impacts on small entities are

considered to be ``significant'' if the proposed action would result

in any of the following: (a) reduction in annual gross revenues by

more than 5 percent; (b) increase in total costs of production by

more than 5 percent as a result of an increase in compliance costs;

(c) compliance costs as a percent of sales for small entities are at

least 10 percent higher than compliance costs as a percent of sales

for large entities; (d) capital cost of compliance represent a

significant portion of capital available to small entities,

considering internal cash flow and external financing capabilities;

or, (e) as a rule of thumb, 2 percent of small business entities

being forced to cease business operations. The proposed rule would

result in no additional compliance costs, and therefore items (b),

(c), and (d) are not at issue. Item (e) is not relevant as this

action would not force any business to cease operations. Only (a)

appears potentially relevant to this issue.

This proposed rule could affect a maximum of 2,270 vessels. Of

these, approximately 2,260 (almost 100 percent) are considered small

entities. The rule is expected to have several different types of

impacts. For vessels that obtain contracts to conduct research in

exchange for fish, this rule would provide increased opportunity for

profit. This rule is also expected to lead to the availability of

increased scientific data on the status of the fishery. The

availability of this data will enhance the ability of the agency to

manage the fishery and is likely to lead to long-term benefits for

all participants.

There is also the small possibility that this rule could result

in negative economic impacts on some fishery participants. The fish

that are awarded as compensation would be deducted from next year's

acceptable biological catch. The amounts likely to be diverted for

compensation would be so small as to be within the range of accuracy

expected for inseason monitoring of harvest guidelines and quotas,

and most likely would not change the size of trip limits or their

date of achievement. However, there is a remote possibility that

some trip limits would be lowered, or lowered earlier, as a result

of the small compensation allocation for survey vessels. If this

happens, those vessels that routinely achieve their Dover sole,

thornyhead, and trawl-caught sablefish (DTS) limits could experience

some degree of economic loss. NMFS estimates that approximately 208

limited entry vessels achieved these limits during at least one

trip-limit period between July 1996-June 1997. Thus, 9 percent (208

vessels/2,260 vessels of the affected small entities) could

hypothetically experience some economic loss as a result of this

rule. NMFS estimates that the total cost of the 1998 compensation

fish would be $135,000. If this amount is divided between the

limited entry and open access fleets in proportion to their share of

the fishery, then the cost to the limited entry fleet would be

approximately $128,000 and the cost to the open access fleet would

be approximately $7,000.

If the entire $128,000 share of the survey cost for the limited

entry fleet were supported by the 208 vessels that achieved a

cumulative trip limit of one DTS species during one trip-limit

period, the average cost to each of these 208 vessels would be $615.

The average annual fishing revenue for limited entry vessels in 1996

was $204,000. Thus, the average cost per vessel of spreading the

$128,000 cost among 208 vessels would be 0.3 percent ($615 divided

by $204,000). In addition, NMFS notes that the smallest 12-month

revenue for any of these 208 vessels was $15,000, 5 percent of which

is $750, which is higher than the $615 average cost of the

compensation fish for these 208 vessels. As the vessel revenue

increases, which it does for the remaining 207 vessels, the relative

impact of the cost of compensation fish becomes smaller, and remains

less than 5 percent. From a slightly different perspective, if the

cost associated with using fish as compensation were $128,000 and

were distributed amongst the limited entry vessels in proportion to

the number of periods in which they attained a limit (during July

1996-June 1997), then the largest reduction in annual revenue for

any vessel would be 0.5 percent. NMFS does not anticipate lowering

trip limits in the open access fishery, because the maximum amount

of fish that this rule could possibly reduce the open access fishery

by ($7,000 worth) is so small.

This rule contains collection-of-information requirements subject

to the Paperwork Reduction Act (PRA) and which have been approved by

OMB under OMB control number 0648-0203 for Federal fishing permits.

Notwithstanding any other provision of 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. The public reporting burden for applications

for exempted fishery permits is estimated at 1 hour per response;

burden for reporting by exempted fishing permittees is estimated at 30

minutes per response. These estimates include the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and revising the collection

of information.

Public comment is invited regarding: Whether this proposed

collection of information is necessary for the proper performance of

the function 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

[[Page 27039]]

technology. Send comments regarding these burden estimates or any other

aspect of the data requirements, including suggestions for reducing the

burden, to NMFS (see ADDRESSES) and to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, DC

20503 (ATTN: NOAA Desk Officer).

List of Subjects in 50 CFR Part 660

Administrative practice and procedure, American Samoa, Fisheries,

Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands,

Reporting and recordkeeping requirements.

Dated: May 11, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 660 is

proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN

PACIFIC

l. The authority citation for part 660 continues to read as

follows:

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

2. In Sec. 660.306, paragraph (d) is revised to read as follows:

Sec. 660.306 Prohibitions.

* * * * *

(d) Fish for groundfish in violation of any terms or conditions

attached to an EFP under 50 CFR 600.745 or 660.350.

* * * * *

3. In subpart G, a new Sec. 660.350 is added to read as follows:

Sec. 660.350 Compensation with fish for collecting resource

information--exempted fishing permits off Washington, Oregon, and

California.

In addition to the reasons stated in Sec. 600.745(b)(1) of this

chapter, an EFP may be issued under this subpart G for the purpose of

compensating the owner or operator of a vessel for collecting resource

information according to a protocol approved by NMFS. The EFP would

allow a vessel to retain fish as compensation in excess of trip limits,

or to be exempt from other specified management measures for the

Pacific coast groundfish fishery.

(a) Compensation EFP. A compensation EFP may be issued to the owner

or operator of a vessel that conducted a resource survey according to a

contract with NMFS. A vessel's total compensation from all sources (in

terms of dollars or tons of fish and including fish from survey samples

or compensation fish) will be determined through normal Federal

procurement procedures. The compensation EFP will specify the maximum

amount or value of fish that may be retained by the vessel after the

resource survey is completed.

(1) Competitive offers. NMFS may initiate a competitive

solicitation (request for proposals or RFP) to select vessels to

conduct resource surveys that use fish as full or partial compensation,

following normal Federal procurement procedures.

(2) Consultation. At a Council meeting, NMFS will consult with the

Council and receive public comment on upcoming resource surveys to be

conducted if groundfish could be used as whole or partial compensation.

For each proposal, NMFS will present:

(i) The maximum number of vessels expected or needed to conduct the

survey,

(ii) An estimate of the species and amount of fish likely to be

needed as compensation,

(iii) When the survey and compensation fish would be taken, and

(iv) The year in which the compensation fish would be deducted from

the ABC before determining the harvest guideline or quota. Generally,

compensation fish would be similar to surveyed species, but there may

be reasons to provide payment with healthier, more abundant, less

restricted stocks, or more easily targeted species. For example, NMFS

may decline to pay a vessel with species that are, or are expected to

be, overfished, or that are subject to overfishing, or that are

unavoidably caught with species that are overfished or subject to

overfishing. NMFS also may also consider levels of discards, bycatch,

and other factors. If the Council does not approve providing whole or

partial compensation for the conduct of a survey, NMFS will not use

fish, other than fish taken during the scientific research, as

compensation for that survey.

(3) Issuance of the compensation EFP. Upon successful completion of

the survey, NMFS will issue a ``compensation EFP'' to the vessel if it

has not been fully compensated. The procedures in Sec. 600.745(b)(1)

through (b)(4) of this chapter do not apply to a compensation EFP

issued under this subpart for the Pacific coast groundfish fishery (50

CFR Part 660, subpart G).

(4) Terms and conditions of the compensation EFP. Conditions for

disposition of bycatch or any excess catch, for reporting the value of

the amount landed, and other appropriate terms and conditions will be

specified in the EFP. Compensation fishing must occur during the period

specified in the EFP, but no later than the end of September of the

fishing year following the survey, and must be conducted according to

the terms and conditions of the EFP.

(5) Reporting the compensation catch. The compensation EFP may

require the vessel owner or operator to keep separate records of

compensation fishing and to submit them to NMFS within a specified

period of time after the compensation fishing is completed.

(6) Accounting for the compensation fish. As part of the annual

specification process (50 CFR 660.321), NMFS will advise the Council of

the amount of fish retained under a compensation EFP, which then will

be deducted from the next year's ABCs before setting the HGs or quotas.

(b) EFP with a compensation clause. An EFP may be issued to a

commercial fishing vessel for the purpose of collecting resource

information in excess of current management limits (50 CFR 600.745(b)).

The EFP may include a compensation clause that allows the participating

vessel to be compensated with fish for its efforts to collect resource

information according to NMFS' approved protocol. If compensation with

fish is requested in an EFP application, or proposed by NMFS, the

following provisions apply in addition to those at 50 CFR 600.745(b).

(1) Application. In addition to the requirements in Sec. 600.745(b)

of this chapter, application for an EFP with a compensation clause must

clearly state whether a vessel's participation is contingent upon

compensation with groundfish and, if so, the minimum amount (in metric

tons, round weight) and the species. As with other EFPs issued under

Sec. 600.745 of this chapter, the application may be submitted by any

individual, including a state fishery management agency or other

research institution.

(2) Denial. In addition to the reasons stated in

Sec. 600.745(b)(3)(iii) of this chapter, the application will be denied

if the requested compensation fishery, species, or amount is

unacceptable for reasons such as, but not limited to, the following:

NMFS concludes the value of the resource information is not

commensurate with the value of the compensation fish; the proposed

compensation involves species that are (or are expected to be)

overfished or subject to overfishing, fishing in times or areas where

fishing is otherwise prohibited or severely restricted, or fishing for

species that would involve unavoidable bycatch of species that are

overfished or subject to overfishing; or NMFS concludes the information

can

[[Page 27040]]

reasonably be obtained at less cost to the resource.

(3) Window period for other applications. If the RA or designee

agrees that compensation should be considered, then a window period

will be announced in the Federal Register during which additional

participants will have an opportunity to apply. This notification would

be made at the same time as announcement of receipt of the application

and request for comments required under Sec. 660.745(b). If there are

more qualified applicants than needed for a particular time and area,

NMFS will choose among the qualified vessels, either randomly, in order

of receipt of the completed application, or by other impartial

selection methods. If the permit applicant is a state, university, or

Federal entity other than NMFS and NMFS approves the selection method,

the permit applicant may chose among the qualified vessels, either

randomly, in order of receipt of the vessel application, or by other

impartial selection methods.

(4) Terms and conditions. The EFP will specify the amounts that may

be taken as scientific samples and as compensation, the time period

during which the compensation fishing must occur, management measures

that are waived while fishing under the EFP, and other terms and

conditions appropriate to the fishery and the collection of resource

information. NMFS may require compensation fishing to occur on the same

trip that the resource information is collected.

(5) Accounting for the catch. Samples taken under this EFP, as well

as any compensation fish, are counted toward the current year's catch

or landings.

[FR Doc. 98-13049 Filed 5-14-98; 8:45 am]

BILLING CODE 3510-22-F