Pacific Coast Groundfish Fishery; Amendment 11

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 990121026-9026-01; I.D. 112498A]

RIN 0648-AL52

Pacific Coast Groundfish Fishery; Amendment 11

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement portions of Amendment

11 to the Pacific Coast Groundfish Fishery Management Plan (FMP). The

Council prepared Amendment 11 in order to bring the FMP into compliance

with the Sustainable Fisheries Act (SFA) regarding overfishing,

bycatch, essential fish habitat, and fishing communities. This proposed

rule would implement the portions of Amendment 11 that would establish

procedures for compensating a vessel owner or operator who has

collected resource information according to a NMFS-approved protocol,

with the opportunity to harvest fish in excess of current vessel limits

and/or outside other restrictions. The proposed rule would also modify

the regulatory definition of ``processing or to process,'' and add a

regulatory definition for ``optimum yield'' consistent with the

definitions of those terms in Amendment 11. This action is also

intended to improve the types and amounts of scientific information

available for use in stock assessments and management of the Pacific

coast groundfish fishery.

DATES: Comments must be submitted in writing by March 29, 1999.

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

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

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

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

Suite 4200, Long Beach, CA 90802-4213. Copies of Amendment 11 to

Pacific Coast Groundfish FMP, and the Environmental Assessment/

Regulatory Impact Review (EA/RIR) are available from Larry Six,

Executive Director, Pacific Fishery Management Council, 2130 SW Fifth

Avenue, Suite 224, Portland, OR 97201. Send comments regarding the

reporting burden estimate or any other aspect of the collection-of-

information requirements in this proposed rule, including suggestions

for reducing the burden, William Stelle, Jr. or to Dr. William T.

Hogarth 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 King or Yvonne deReynier at

206-526-6140, or James Morgan at 562-980-4000.

SUPPLEMENTARY INFORMATION: On October 11, 1996, the SFA amended the law

first known as the Fishery Conservation and Management Act of 1976. For

over 20 years, successive iterations of that law have provided broad

guidelines and policy direction for U.S. fisheries management. Those

guidelines and policy directions have been significantly revised in the

law's current iteration, the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act). The new Magnuson-Stevens Act

gives the Regional Fishery Management Councils and the Secretary of

Commerce (Secretary), through NMFS, many new responsibilities.

The SFA amended the requirements for FMPs in section 303(a) of the

Magnuson-Stevens Act. The SFA established a 2-year deadline (October

11, 1998) by which each Regional Fishery Management Council had to

submit amendments to NMFS to bring its FMPs into compliance with the

new requirements in section 303(a) of the Magnuson-Stevens Act.

Through Amendment 11, the Council intends to make the Pacific Coast

Groundfish FMP consistent with the Magnuson-Stevens Act by amending the

FMP framework that defines ``optimum yield'' for setting annual

groundfish harvest limits; setting framework control rules on defining

rates of ``overfishing'' and levels at which managed stocks are

considered ``overfished;'' defining Pacific Coast groundfish essential

fish habitat; setting a bycatch management objective and a framework

for bycatch reduction measures; establishing a management objective to

take the importance of fisheries to fishing communities into account

when setting groundfish management measures; providing authority within

the FMP for the Council to require groundfish use permits for all

groundfish users; authorizing the use of fish for compensation for

private vessels conducting NMFS-approved research; removing jack

mackerel from the fishery management unit; and updating FMP objectives,

definitions, and industry descriptions.

NMFS is proposing this rule to implement the portions of Amendment

11 that would authorize NMFS to compensate the owners or operators of

private vessels conducting NMFS-approved research with fish. The

proposed rule would add a definition for the term ``optimum yield''

(OY) and make minor changes to the definitions of several regulatory

terms in the existing regulations governing the Pacific Coast

groundfish fishery. This proposed rule would not remove jack mackerel

from the fishery management unit, because that will be done with the

implementation of the Coastal Pelagic Species FMP, which will include

jack mackerel in its fishery management unit. This proposed rule is

based on recommendations of the Council, under the authority of the

Pacific Coast Groundfish FMP and the Magnuson-Stevens Act. The

background and rationale for the Council's recommendations are

summarized below. Further detail appears in the EA/RIR prepared by the

Council for Amendment 11.

Background

Among the many changes to the Magnuson-Stevens Act was an amendment

to authorize the Secretary to use the private sector to provide

vessels, equipment, and services necessary to survey fishery resources

and to compensate vessel owners or operators with the fish taken during

the survey and with the opportunity to harvest fish in excess of

otherwise applicable management measures, if the quality or amount of

fish is not adequate, on a subsequent commercial fishing trip (sec.

402(e)) of the Magnuson-Stevens Act. Section 303(b)(11) of the

Magnuson-Stevens Act further enables the Secretary to ``reserve a

portion of the allowable biological catch of the fishery for use in

scientific research.''

At its November 1997 meeting, the Council recommended that NMFS

implement an emergency rule for 1998 that would 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''). At the time, the Council was

[[Page 6598]]

developing Amendment 11, and expected that a portion of Amendment 11

would authorize the Council to set a policy allowing small amounts of

the acceptable biological catches (ABC)s of managed species to be

reserved for use in scientific research and in compensation with fish

for that research. To allow NMFS to use private vessels in its resource

surveys in the summer and fall of 1998, NMFS implemented an emergency

rule authorizing the agency to make fish available for those surveys

prior to the Council's adoption of Amendment 11. On July 7, 1998 (at 63

FR 36614), NMFS implemented a final emergency rule to allow vessel

owners and operators to be compensated with fish for their

participation in NMFS-approved research surveys. This rule was extended

for an additional 180 days on January 4, 1999 (64 FR 45).

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. As a result of this effort, the

Council recommended amending the FMP to include provisions allowing

NMFS to compensate fishers who participate in resource surveys with

fish. This proposed rule would permit the use of fish as compensation

for participation in resource surveys through codifying with minor

changes regulatory language that was temporarily set in place as an

emergency rule in 1998.

Compensation for a Chartered 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

NMFS contract 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, which involves issuing a Letter of

Acknowledgment (LOA), described at 50 CFR 600.745(a). Scientific

research is not governed by regulations that cover commercial fishing.

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. Scientific research is not

governed by regulations that cover commercial fishing. However, any

additional harvest taken on a subsequent commercial trip as payment for

the resource survey would not have been considered scientific research

and, was not authorized under the old provisions of the Magnuson-

Stevens Act.

The new provisions of the Magnuson-Stevens Act provide NMFS 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 would authorize

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

fishing permit (EFP) in the Pacific Coast groundfish fishery. Such an

EFP would be called a compensation EFP and would enable the vessel to

take and retain compensation fish through revised trip limits and/or

relaxation of other specified management measures.

The compensation EFP would include terms and conditions that

limiting the activities authorized. 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. The Council anticipates 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, so that fish taken

under the compensation EFP are counted separately from other 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. NMFS would anticipate that

vessel owners would submit offers to conduct the resource survey for a

combination of dollars and compensation fish, or entirely compensation

fish. The competitive solicitation would be part of the Federal

procurement process, and it would not be governed by this rule.

Consultation

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

receive public comment on upcoming resource surveys where NMFS proposes

to use groundfish to compensate in whole or in part, the vessel owners

or operators conducting the survey.

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

vessels, (3) the time 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 OY 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 such other factors 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

could include

[[Page 6599]]

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 for 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 during

the survey could be retained and sold as partial payment for the

vessel's participation as long as the retention of these fish did not

interfere with the exclusive research mission of the trip. 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 or landing limits

by the total amount of compensation fish needed and/or exempt the

vessel from other specified management measures as necessary to harvest

such fish. The amount of compensation fish needed would generally be

the amount of fish equivalent to the value specified in the contract

less the value of the survey sample retained for sale. The compensation

EFP also may exempt the vessel from other specified management

measures.

Accounting for Compensation Fish

The fish used for compensation should be deducted from the ABC at

the beginning of the year so that it will come off the top before the

various allocations are made. Deducting the fish inseason instead could

cause great confusion with the many allocations and limits that are set

at the beginning of the year. The exact species and amount of fish to

be taken as compensation will not be known until the contract has been

awarded and the compensation EFP has been issued. During the annual

specification process (50 CFR Sec. 660.321(b)), NMFS would advise the

Council of the total amount of fish authorized in the compensation EFPs

for conducting a resource survey, which then would be deducted from the

following year's ABCs before setting the OYs or quotas. Fish caught

under EFPs issued too late in the year for the authorized catch to be

deducted from the next year's ABC would be deducted in the next

management cycle practicable.

Compensation for a Commercial Vessel Collecting Resource

Information

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 to collect the resource

information. The EFP would require a vessel to conduct specific

activities and allow it to retain and sell the limited amount of fish

harvested during these activities, which would be in addition to the

amount it could take under its regular trip limit or under other

management measure. After the resource information had been obtained,

the vessel could sell the fish that were taken under the EFP. This

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

600.745(b). Fish caught under such an EFP would count against the ABCs

and OYs or quotas in the year they are caught.

In some circumstances, NMFS might allow the vessel to harvest

slightly more fish than necessary for the particular project. These

proposed regulations would allow NMFS to provide such compensation. A

vessel might be permitted to retain the scientific sample plus a modest

compensation amount, no larger than the size of the sample, above the

vessel's normal trip limits. For example, these samples might be less

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

other amounts could be authorized depending on the scope of the

project. 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. The extra fish would compensate the vessel for the extra

work involved in collecting the samples and may encourage vessels to

participate in cooperative projects. Also, more of the fish taken

during the samplings that is surplus to sampling needs would be used,

rather than discarded.

In cases where NMFS might allow harvesting of fish beyond what is

necessary for a project, when NMFS announces receipt of the EFP

application and requests comments as required under 50 CFR 600.745(b),

NMFS could 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.

Regulatory Definitions of Terms

The term, ``Processing or to process,'' is codified in the

regulations that implement the FMP and has been modified by Amendment

11. This proposed rule would amend the codified definition of

``Processing or to process'' to include the preparation or packaging of

groundfish to render it suitable for retail sale.

The term, ``optimum yield,'' is not new to the FMP or to Pacific

coast groundfish management, but its definition has not been codified

in the regulations that implement the FMP. Optimum yield (OY) is

defined in the Magnuson-Stevens Act as the amount of fish that will

provide the greatest overall benefit to the Nation. The Magnuson-

Stevens Act also specifies that OY is based on maximum sustainable

yield (MSY) and may be equal to or less than MSY. The FMP authorizes

establishment of a numerical or non-numerical OY for any groundfish

species or species group and lays out the procedures the Council will

follow in determining appropriate numerical OY values. An OY may be

specified for

[[Page 6600]]

the fishery management area as a whole or for specific subareas.

Numerical OYs will be specified annually, based on ABCs for major

species or species groups, which are in turn based on quantitative or

qualitative stock assessments. ``Control rules'' for determining the

numerical values of OYs ensure they will not exceed the ABCs except

under tightly limited conditions.

OY may be expressed non-numerically (in terms of fish that are

caught under certain management measures) or numerically (as a harvest

guideline or quota). Therefore, the current definitions for harvest

guideline and quota remain in effect, as expressions of a numerical OY.

``Harvest guideline'' continues to mean any specified numerical harvest

objective that is not a quota. Attainment of a harvest guideline does

not require closure of a fishery, although closure remains an option.

``Quota'' continues to mean any specified harvest objective, the

attainment (or expected attainment) of which causes closure of the

fishery for that species or species group. Some sections of the

codified text that refer to ``harvest guideline'' or ``quota'' have

been modified to include the term ``optimum yield.''

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 the same as and 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 of NMFS's ability 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 a Pacific coast trawl survey is relatively

fixed, regardless of the abundance and value of the species surveyed.

The contract for an extensive survey (e.g., two 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, ($90 million), or approximately 1

percent of the $45 million value of the 1996 fisheries for the Dover

sole, thornyheads, and trawl-caught sablefish complex (DTS), the most

valuable portion of the Pacific coast groundfish complex. 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.

Not all components of the groundfish fishery are useful as

compensation fish. Groundfish species for which there is no

constraining trip limit, season, or other management restriction would

not be desirable targets as compensation because a vessel is not

limited in its catch of those species. Groundfish species that are

under management restrictions could be compensation species because

fishers participating in resource surveys would be authorized to catch

a greater quantity of the management-restricted (and generally more

valuable) species than otherwise available to the rest of the fleet. An

unfortunate aspect is that most depressed stocks (such as Pacific ocean

perch) may not afford an allocation of compensation fish, while most

healthy stocks (like English sole) have no trip limits or allocations,

so would not 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 adequate

opportunity to take their monthly cumulative trip limit (or other

limit). The contract and EFP may allow the take of a cumulative trip

limit (or other fishing opportunity that was lost due to time used in

conducting the survey) 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 OY 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 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 unlikely that awarding fish

for compensation would result in lower trip limits or additional or

earlier restrictions, although this could potentially 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 new

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, some of whom have been skeptical of NMFS's

data and survey procedures. Resource survey 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

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

determined through a competitive process.

Using fish as compensation would enable NMFS to gather more data

than would otherwise be possible. More data should lead to better stock

assessments and a more accurate 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

At this time, NMFS has not determined that Amendment 11 that this

rule would implement is consistent with the national standards of the

Magnuson-Stevens Act and other applicable laws. NMFS, in making that

determination, will take into account the data, views, and comments

received during the comment period

[[Page 6601]]

This proposed 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.

The groundfish species that would be most desirable to fishers

as compensation for resource survey participation would be species

under management restrictions such as trip limits or season length

limits. The amounts of each species that would be used as

compensation are expected to be less than 5 percent of the ABCs of

those species. The majority of the groundfish species managed under

the FMP are not managed with species-specific landing limits.

Therefore, even if as much as 5 percent of each of the management-

restricted species were used as compensation fish, the compensation

fish would still represent much less than 5 percent of all possible

groundfish landings, and less than 5 percent of all groundfish

landings revenue. It is possible that more than one survey could be

conducted in a given year. Even so, it is not expected that more

than 5 percent of any species' ABC would be designated for

compensation fishing. For these reasons, it is extremely unlikely

that this proposed rule could result in a reduction in annual gross

revenues by more than 5 percent for 20 percent of the affected

fishers.

To demonstrate the expected insignificant impact of this

proposed rule, an analysis is presented below that shows the effect

on the groundfish fleet of using the Dover sole, thornyhead, and

sablefish (DTS) complex as compensation fish. These particular fish

species were chosen for this analysis because DTS complex species

are some of the highest value species within the groundfish complex.

The financial effects of reducing the quantity of these species

available to fishers who do not participate in resource surveys

would be significantly greater than the financial effects of

reducing the availability of other management-restricted species.

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

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

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

effects. 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, which will

enhance the ability of the agency to manage the fishery and may lead

to long-term benefits for all participants.

There is also the small possibility that this proposed rule

could result in negative economic effects on some fishery

participants. The fish that are awarded as compensation would be

deducted from next year's ABC. 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 in the year,

as a result of the small compensation allocation for survey vessels.

If this happens, those vessels that routinely achieve their trip

limits could experience some degree of economic loss. Again, Dover

sole, thornyheads, and trawl-caught sablefish are used to illustrate

the greatest expected impact on fishery participants, as those are

the most valuable species in the groundfish complex. 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 out of the 2,260 affected small

entities) could hypothetically experience some economic loss as a

result of this rule. NMFS estimates that the total cost of the fish

used as compensation for the 1998 slope survey could 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 that

setting aside a portion of management-restricted species ABCs for

compensation fishing could lower trip limits in the open access

fishery, because open access allocations of management-restricted

species are small enough so that the burden of ABC reduction shared

by the open access fleet would be negligible.

For these reasons, and because the effects of the proposed rule

would be spread over approximately 2,270 limited entry and open

access vessels making Pacific coast groundfish landings, this

proposed rule will not have a significant economic impact on a

substantial number of small entities. Therefore, a regulatory

flexibility analysis was not prepared.

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 sought regarding: whether this 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 technology. Send comments

[[Page 6602]]

regarding this burden estimate or any other aspect of the data

collection, including suggestions for reducing the burden, to NMFS (see

ADDRESSES) and to OMB, 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: February 4, 1999.

Gary C.Matlock,

Acting 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. 660.302, the definition ``Optimum yield'' is added, and

the definitions of ``Commercial harvest guideline or commercial

quota'', ``Processing or to process'', and ``Specification'' are

revised in alphabetical order to read as follows:

Sec. 660.302 Definitions

* * * * *

Commercial harvest guideline or commercial quota means the harvest

guideline or quota after subtracting any allocation for the Pacific

Coast treaty Indian tribes, for recreational fisheries, and for

compensation fishing under Sec. 660.350. Limited entry and open access

allocations are based on the commercial harvest guideline or quota.

* * * * *

Optimum yield (OY) means the amount of fish that will provide the

greatest overall benefit to the Nation, particularly with respect to

food production and recreational opportunities, and, taking into

account the protection of marine ecosystems, is prescribed as such on

the basis of the MSY from the fishery, as reduced by any relevant

economic, social, or ecological factor; and, in the case of an

overfished fishery, provides for rebuilding to a level consistent with

producing the MSY in such fishery. OY may be expressed numerically (as

an HG, quota, or other specification) or non-numerically.

* * * * *

Processing or to process means the preparation or packaging of

groundfish to render it suitable for human consumption, retail sale,

industrial uses or long-term storage, including, but not limited to,

cooking, canning, smoking, salting, drying, filleting, freezing, or

rendering into meal or oil, but does not mean heading and gutting

unless additional preparation is done.

* * * * *

Specification is a numerical or descriptive designation of a

management objective, including but not limited to: ABC; optimum yield;

harvest guideline; quota; limited entry or open access allocation; a

set aside or allocation for a recreational or treaty Indian fishery; an

apportionment of the above to an area, gear, season, fishery, or other

subdivision; DAP, DAH, JVP, TALFF, or incidental bycatch allowances in

foreign or joint venture fisheries.

* * * * *

3. In Sec. 660.306, paragraphs (d), (e), and (f) are 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 Sec. 600.745 of this chapter or Sec. 660.350.

(e) Fish for groundfish using gear not authorized under

Sec. 660.322 or in violation of any terms or conditions attached to an

EFP issued under Sec. 660.350 or part 600 of this chapter.

(f) Take and retain, possess, or land more groundfish than

specified under Secs. 660.321 and 660.323, or under an EFP issued under

Sec. 660.350 or part 600 of this chapter.

* * * * *

4. In Sec. 660.321, paragraph (b) is revised to read as follows:

Sec. 660.321 Specifications and management measures.

* * * * *

(b) Annual actions. The Pacific Coast groundfish fishery is managed

on a calendar year basis. Even though specifications and management

measures are announced annually, they may apply for more than 1 year.

In general, management measures are designed to achieve, but not

exceed, the specifications, particularly optimum yields (harvest

guidelines and quotas), commercial harvest guidelines and quotas,

limited entry and open access allocations, or other approved fishery

allocations.

* * * * *

5. Section 660.350 is revised 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. NMFS may issue an

EFP allowing a vessel to take and retain fish as compensation in excess

of trip limits and/or to be exempt from other specified management

measures for the Pacific coast groundfish fishery.

(a) Compensation EFP for vessels under contract with NMFS to

conduct a resource survey. NMFS may issue an EFP 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, 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 the vessel may take and retain 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 and approval. At a Council meeting, NMFS will

consult with the Council, receive public comment, and seek Council

approval of upcoming resource surveys for which NMFS proposes to use

groundfish as whole or partial compensation. If the Council does not

approve providing whole or partial compensation with fish 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 optimum yield (harvest guideline or

quota).

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

the

[[Page 6603]]

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 may 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 catch. As part of the annual

specifications process (Sec. 660.321), NMFS will advise the Council of

the amount of fish authorized to be retained under a compensation EFP,

which then will be deducted from the next year's ABCs before setting

the HGs or quotas. Fish authorized in an EFP 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) Compensation for commercial vessels collecting resource

information under a standard EFP. NMFS may issue an EFP to allow a

commercial fishing vessel to take and retain fish in excess of current

management limits for the purpose of collecting resource information

(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 a less cost to the resource.

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

agrees that compensation should be considered, and that more than a

minor amount would be used as compensation, 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 NMFS will waive for a vessel 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, count toward the current year's catch or

landings.

[FR Doc. 99-3280 Filed 2-9-99; 8:45 am]

BILLING CODE 3510-22-F