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. 980501115-8160-02; 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: Emergency rule.

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SUMMARY: This action, authorized by the Magnuson-Stevens Conservation

and Management Act (Magnuson-Stevens Act), implements 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.

This action must be implemented 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: Effective July 1, 1998 through January 4, 1999.

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. Copies of the

[[Page 36615]]

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

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: Katherine A. King at 206-526-6140.

SUPPLEMENTARY INFORMATION: NMFS is implementing an emergency rule 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 this action at its

November 1997 meeting in Portland, OR, with the intent that NMFS

proceed with this rule immediately so that NMFS may so contract with

commercial fishing vessels to conduct resource surveys during the

summer of 1998.

A proposed rule was published on May 15, 1998 (at 63 FR 27035),

requesting public comments through June 5, 1998. One comment was

received, which resulted in no change to the final rule, and NMFS made

one clarification regarding accounting for fish used as compensation.

The final rule is substantively the same as proposed. See the preamble

to the proposed rule for additional background information.

Background

On October 11, 1996, the 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 must not conduct commercial fishing on

the same trip during which a resource survey is conducted.

These provisions must be in place by early July 1998 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 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 that

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 in August 1998. Therefore, NMFS is implementing 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. The Council is preparing an amendment to

the PCGFMP for later implementation.

Compensation for a Vessel Conducting a Resource Survey

The Magnuson-Stevens Act authorizes the Secretary, in consultation

with the Council and the fishing industry, 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. This

additional harvest 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 authorizes 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.

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, i.e., request for

proposals (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 the 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.

[[Page 36616]]

Council Consultation and Approval

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) the

time frame in which 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 will 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 for the vessel to have 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, the owner or operator of the vessel could

retain and sell some fish caught while conducting the survey as

compensation for the vessel's participation. Retention of samples for

sale would be at the discretion of the chief scientist on board, 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 of the

determination concerning 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 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 also could 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. Therefore, the

compensation fish will 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. (If compensation fish are taken too late in the year so that

landings data are not available to be deducted from the next year's

ABC, it will be deducted in the next management cycle practicable.)

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, encourage vessels to participate in surveys,

and utilize more of the fish taken during the surveys that are 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 also announces 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 to a state or other Federal research agency, and the

research agency's proposal would include an impartial way of selecting

fishing vessel

[[Page 36617]]

participants that would receive individual EFPs under the umbrella EFP

held by the research agency.

Biological and Socio-economic Impacts

The biological impacts of using fish as compensation are 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 will be within the

ABC, and ,therefore, within current acceptable biological levels. 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, resulting in better management of

the stock and less likelihood of overfishing. This should lead to

better stock assessments and to a better long-term prognosis for a

sustainable fishery, contributing to stability in the fishing industry

and in the resources upon which the industry depends. A more detailed

discussion is found in the preamble to the proposed rule and the

environmental assessment for this action.

Comment and Response

One comment was received during the public comment period. It was

supportive of the rule but requested a broader distribution of the RFP

soliciting charter vessels to conduct resource surveys. NMFS agrees

that a wide distribution is a good idea and will attempt to do so. In

fact, notification of the RFP for the 1998 slope survey was submitted

to each holder of a limited entry trawl permit for the groundfish

fishery off Washington, Oregon, and California. However, distribution

of the RFP is part of the Federal procurement process and is not

governed by this rule; a description was included in the preamble of

the proposed rule as background information. Therefore, no change is

made to this rule.

Clarification

NMFS has changed the rule slightly to clarify that compensation

fish caught too late in 1998 to be counted against the 1999 ABC may be

deducted in the next management cycle practicable, e.g., 2000. Other

minor editorial changes have been made for clarity and to meet

publication format requirements.

Classification

The Assistant Administrator (AA) finds that the need to implement

these measures in a timely manner so that vessels collecting resource

information may be compensated with fish constitutes good cause under

authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in

effective date. If the rule was not made effective for 30 days, NMFS

would be unable to issue fish compensation contracts in a timely manner

to vessels needed to conduct the August 1998 slope survey. This would

be contrary to the public interest because sufficient funds are not

available to compensate all of the vessels needed to conduct an

adequate survey. The result would be a reduced survey with less data to

determine the status of the resource. Also, it is unnecessary to delay

the rule because the survey does not directly affect the activities of

the 1998 fishery and there are no compliance requirements for

participants in the survey.

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 rule would not have a

significant economic impact on a substantial number of small entities.

No comments were received regarding this certification. As a result, a

regulatory flexibility analysis was not prepared.

This emergency rule contains a collection-of-information

requirement subject to the Paperwork Reduction Act (PRA).

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 collection of this information has been

approved by the Office of Management and Budget, under OMB control

number 0648-0203 for Federal fishing permits. 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. 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: June 30, 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 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 (y) is added to read as follows:

Sec. 660.306 Prohibitions.

* * * * *

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

attached to an EFP under Sec. 660.350.

3. In part 660, 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 amount 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

[[Page 36618]]

vessels to conduct resource surveys that use fish as full or partial

compensation, following normal Federal procurement procedures.

(2) Consultation and approval. 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. 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. 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.

(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 (Sec. 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.

Fish taken too late in the year to be deducted from the following

year's ABC will be accounted for in the next management cycle

practicable.

(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 (Sec. 600.745(b) of

this chapter). 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

Sec. 600.745(b) of this chapter.

(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 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. 98-17937 Filed 7-1-98; 3:32 pm]

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