# Pacific Coast Groundfish Fishery; Amendment 11

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A99-3280

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 10, 1999
- **Citation:** 64 FR 6597

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-3280. Public record. Not legal advice.