[Federal Register Volume 59, Number 76 (Wednesday, April 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9482]
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[Federal Register: April 20, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Parts 672 and 675
[Docket No. 940102-4106; I.D. 122293D]
RIN 0648-AF17
Groundfish of the Gulf of Alaska; Groundfish Fishery of the
Bering Sea and Aleutian Islands Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS announces the approval of Amendment 25 to the Fishery
Management Plan (FMP) for the Groundfish Fishery of the Bering Sea and
Aleutian Islands Area (BSAI) and issues final regulations to implement
the amendment that eliminates the primary Pacific halibut prohibited
species catch (PSC) limit established for BSAI trawl fisheries. NMFS
also issues final regulations that prohibit the discard of salmon taken
as bycatch in the BSAI groundfish trawl fisheries until the number of
salmon has been determined by a NMFS-certified observer, and authorizes
the release of vessel-specific observer data on bycatch of prohibited
species in the BSAI and Gulf of Alaska (GOA) groundfish fisheries. This
action is necessary to manage effectively the halibut PSC limit
established for BSAI trawl fisheries and to provide better information
on salmon and other prohibited species bycatch. This action is intended
to promote management and conservation of groundfish and other fish
resources and to further the objectives contained in the FMP for the
Groundfish Fishery of the BSAI and the FMP for Groundfish of the GOA.
EFFECTIVE DATE: May 20, 1994.
ADDRESSES: Copies of Amendment 25 and the environmental assessment/
regulatory impact review (EA/RIR) may be obtained from the North
Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK
99510; telephone: 907-271-2809.
FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Fishing for groundfish by U.S. vessels in the exclusive economic
zone of the GOA and the BSAI is managed by the Secretary of Commerce
(Secretary) according to the FMP for Groundfish of the GOA and the FMP
for the Groundfish Fishery of the BSAI. The FMPs were prepared by the
North Pacific Fishery Management Council (Council) under the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)
(Magnuson Act), and are implemented by regulations governing the U.S.
groundfish fisheries at 50 CFR parts 672 and 675. General regulations
that also pertain to U.S. fisheries are codified at 50 CFR part 620.
This action implements Amendment 25 to the FMP for the Groundfish
Fishery of the BSAI, which eliminates the primary halibut PSC limit
established for the BSAI groundfish trawl fisheries. This action also
implements regulatory amendments that: (1) Prohibit the discard of
salmon taken as bycatch in the BSAI groundfish trawl fisheries until a
NMFS-certified observer has determined the number of salmon and
completed the collection of any scientific data or biological samples
from the salmon; and (2) authorize the release of vessel-specific
observer data on bycatch of prohibited species in the BSAI and GOA
groundfish fisheries.
A notice of availability of Amendment 25 was published in the
Federal Register on December 29, 1993 (58 FR 68848), and invited
comment on the amendment through February 22, 1994. No written comments
were received. A proposed rule to implement Amendment 25 and the
regulatory amendments referenced above was published in the Federal
Register January 19, 1994 (59 FR 2817). Comments on the proposed rule
were invited through February 28, 1994. Five letters providing 15
comments were received that are summarized in the Response to Comments
section, below.
Amendment 25 was approved by the Secretary on March 25, 1994, under
section 304(b) of the Magnuson Act. Upon reviewing the amendment, the
comments on the proposed rule to implement it and the two proposed
regulatory amendments, NMFS has determined that this final rule
implementing the following measures is necessary for fishery
conservation and management:
1. Elimination of the primary PSC limit established for the BSAI
groundfish trawl fisheries that, when reached, required NMFS to close
bycatch limitation zones 1 and 2H of the Bering Sea. This action does
not affect the overall halibut bycatch mortality limit (3,775 metric
tons) established for the BSAI trawl gear fisheries.
2. Prohibit the discard of salmon taken as bycatch in the BSAI
groundfish trawl fisheries until a NMFS-certified observer has
determined the number of salmon and completed the collection of any
scientific data or biological samples from the salmon.
3. Establishment of regulatory authority to release to the public
vessel-specific observer data on bycatch of prohibited species in the
BSAI and GOA groundfish fisheries. On a weekly basis, the following
observer data are authorized for release by NMFS for each vessel
participating in a directed fishery for Alaska groundfish:
1. The name and Federal permit number of the vessel;
2. The observed number of chinook salmon and other salmon taken by
the vessel;
3. The observed vessel bycatch rates of Pacific halibut, Pacific
herring, king crab, and Chionoecetes bairdi Tanner crab;
4. The number of observed trawl hauls or fixed gear sets;
5. The number of trawl hauls that were basket sampled; and
6. The total weight of basket samples taken from sampled trawl
hauls.
NMFS could also make available to the public the following observer
data collected in the Alaska groundfish trawl fisheries other than for
rockfish, Greenland turbot, or Atka mackerel. These data would not be
identified by vessel and would include the following for each observed
haul:
1. Date;
2. Time of day gear is deployed;
3. Latitude and longitude at beginning of haul;
4. Bottom depth;
5. Fishing depth of trawl;
6. Rate chinook salmon (number of chinook salmon/mt groundfish);
7. Rate other salmon (number of other salmon/mt groundfish);
8. Rate Pacific halibut (kg halibut/mt groundfish;
9. Rate Pacific herring (kg herring/mt groundfish);
10. Rate king crab (number of crab/mt groundfish);
11. Rate C. bairdi Tanner crab (number of crab/mt groundfish);
12. Sea surface temperature (where available); and
13. Sea temperature at fishing depth of trawl (where available).
The intent of the measures implemented under this action is to
eliminate the primary halibut bycatch mortality limit as a halibut
bycatch management measure, provide better information to management
agencies and the public on salmon and other prohibited species bycatch,
and support independent industry initiatives to address the prohibited
species bycatch problem. Further explanation of, and reasons for, these
measures are contained in the preamble to the proposed rule (59 FR
2817, January 19, 1994).
Changes in the Final Rule From the Proposed Rule
This final rule includes the following changes from the proposed
rule: These changes are described as follows.
1. Section 672.7(h) and Sec. 675.7(o) are redesignated as
Sec. 672.7(o) and Sec. 675.7(p), respectively, to accommodate other
recently implemented regulations.
2. Regulatory language at Sec. 675.20(c)(6) has been clarified to
set out NMFS's intent to allow observers to use NMFS guidelines for an
estimate of the number of retained salmon when time constraints or
other duties prevent an observer from counting each fish. Specifically,
the phrase ``until all salmon have been counted by a NMFS-certified
observer'' has been revised to read ``until the number of salmon has
been determined by a NMFS-certified observer''. Accordingly, regulatory
text at Sec. 672.7(n) and Sec. 675.7(o) has been changed.
3. In Sec. 675.20, paragraphs (c)(6)(ii) through (iv) are
redesignated as paragraphs (c)(6)(i)(A) through (C), respectively, and
paragraphs (c)(6)(v) through (vii) are redesignated as paragraphs
(c)(6)(ii) through (iv), respectively. Redesignated paragraph
(c)(6)(i)(A) is revised to require operators of vessels carrying
observers onboard, and whose fishing operations allow for sorting of
catch, to retain salmon from different hauls separately and in a manner
that identifies the haul from which the salmon were taken. This action
is taken in response to public comment that salmon from different hauls
should be counted separately to determine possible correlations between
haul characteristics and salmon bycatch rates. This revision to
regulatory text will provide NMFS with data that could be used to
assess observed salmon bycatch rates when other than whole-haul
sampling is used by the observer.
4. Regulatory text at Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is
revised to include the authority to release to the public observer data
on the number of trawl hauls or fixed gear sets observed onboard a
vessel during a weekly reporting period, the number of trawl hauls that
were basket sampled, and the total weight of basket samples taken from
sampled hauls. This action is taken to respond to public comment
received on the proposed rule that observed bycatch rates based on
small sample sizes often can be misleading.
5. Regulatory text at Sec. 672.27(g)(2) and Sec. 675.27(g)(2) is
revised to clarify NMFS intent that the observer data collected for
individual hauls and authorized for release to the public will not be
identified by vessel name or other information that identifies the
vessel from which the data were collected.
Response to Comments
Five letters of comments were received within the comment period
that ended February 28, 1994. All the letters supported regulations
implementing Amendment 25 that eliminate the primary halibut PSC limit
for the BSAI trawl gear fisheries. A summary of comments on the
regulatory amendments and NMFS's response follows.
Comment 1. Any action is supported that contributes to the
reduction of prohibited species bycatch rates and optimal management of
prohibited species bycatch in all North Pacific fisheries. One means of
achieving this goal is better collection and assessment of data
generated by the NMFS Observer Program. Retention is an important first
step to accurate assessment of salmon bycatch. In addition, NMFS is
encouraged to investigate the accuracy of estimating prohibited species
catch in groundfish catches using whole-haul versus basket sampling
methods.
Response. NMFS concurs that additional information on salmon
bycatch is desirable and necessary to develop future management actions
to address the salmon bycatch problem in the Alaska groundfish trawl
fisheries. Accordingly, NMFS has approved this final rule to meet this
need. NMFS intends to use the additional data on salmon bycatch
collected under this final rule to assess the quality of salmon bycatch
rate estimates derived from existing observer sampling procedures and
to provide additional information with which to assess the magnitude of
salmon bycatch in the Alaska trawl fisheries.
Comment 2. Proposed regulations prohibiting the discard of salmon
taken in BSAI groundfish trawl fisheries until the number of salmon is
determined by a NMFS-certified observer also should apply to GOA trawl
fisheries. Salmon bycatch rates in the GOA trawl fisheries often equal
or exceed those in the Bering Sea, and vessels in the GOA typically
operate with less observer coverage than their BSAI counterparts.
Response. NMFS acknowledges that the salmon bycatch problem extends
to the GOA trawl fisheries. However, the Council did not consider
extending salmon retention criteria to the GOA trawl fisheries, and the
supporting analyses presented to the Council did not address this
alternative. The Council's request to NMFS to prepare rulemaking to
implement mandatory retention of salmon until counted by an observer
was based on issues associated with chinook salmon bycatch in the BSAI
trawl fisheries and independent industry initiatives to address the
chinook salmon bycatch problem in these fisheries. Council support for
the BSAI program was reinforced after its consideration of the high
bycatch amounts of chum salmon estimated for the BSAI pollock fishery
during the 1993 non-pollock roe or ``B'' season.
Relative to the BSAI trawl fleet, the GOA fleet typically comprises
smaller vessels with less observer coverage. Therefore, monitoring
compliance with mandatory salmon retention requirements would be more
difficult. Fewer GOA processors are required to have 100-percent
observer coverage relative to BSAI processing operations, because of
the smaller volume of groundfish processed on a monthly basis. As a
result, GOA processors would tend to incur greater relative costs
associated with retaining and freezing salmon until an observer becomes
available to count retained fish.
If the BSAI program is determined to be effective in collecting
additional information on salmon bycatch, and the Council wishes to
expand this program to the GOA trawl fisheries, NMFS could initiate
separate rulemaking to extend the salmon retention program to the GOA.
Comment 3. The intent of the proposed regulatory language at
Sec. 675.20(c)(6)(vii) is unclear. This language states that all salmon
must be returned to Federal waters immediately, with a minimum of
injury, following notice by a NMFS-certified observer that salmon have
been counted and the collection of any scientific data or biological
samples has been completed. Why is the term ``minimum of injury'' used
when all retained salmon likely are dead? What is a reasonable
definition of the term ``immediately'' for salmon that have been in
frozen storage at a shoreside facility awaiting the arrival of an
observer? Can a vessel transport another vessel's salmon bycatch back
out to Federal waters? After they have been counted by an observer, can
salmon be disposed of by sending them to a meal plant?
Response. The FMPs currently state that all prohibited species must
be returned to the sea with a minimum of injury except when their
retention is authorized by other applicable law. NMFS recognizes that
the rationale for existing standards that require prohibited species be
returned to the sea with a ``minimum of injury'' becomes questionable
for those prohibited species that obviously are dead, such as salmon
delivered to shoreside processors for counting by a NMFS-certified
observer. NMFS believes that this issue is not unique to salmon
bycatch, and that other prohibited species often are landed shoreside
by those vessel operators whose fishing operations do not allow for
effective sorting of catch at sea. At this time, processors are not
allowed to dispose of prohibited species by sending them to meal
plants. Meal ultimately is produced for commercial sale, and existing
regulations are intended to prevent the commercial sale of prohibited
species. Federal regulations could be amended to allow the grinding of
prohibited species so they could be more easily disposed of in a manner
similar to other fish waste under discharge permits issued to
processors under the Clean Water Act. NMFS believes that rulemaking
authorizing this manner of disposal of salmon delivered to processors
in State waters should be considered for all prohibited species, not
just salmon. A comprehensive approach for assessing and revising
guidelines for disposal of prohibited species is outside the scope of
this regulatory action. Therefore, until rulemaking is initiated to
revise disposal guidelines for all prohibited species, NMFS has
determined to maintain the proposed regulatory guidelines for disposal
of salmon after the number of salmon have been determined by a NMFS-
certified observer.
Under this final rule, salmon retained and delivered to a processor
by one vessel subsequently can be loaded on to another vessel for
discard in Federal waters. For purposes of clarifying
Sec. 675.20(c)(iv), the term ``immediately'' has been changed to ``as
soon as is practicable'' to better express NMFS's intent for the
disposal of retained salmon.
Comment 4. Approved methods of disposing of salmon after the number
of salmon have been determined by an observer should include
distribution to foodbanks through authorized nonprofit organizations.
Response. The authority to retain salmon taken as bycatch in the
Alaska groundfish trawl fisheries for delivery to an authorized
distributor for nonprofit foodbank organizations is beyond the scope of
this action. The Council has requested that NMFS prepare an analysis of
alternatives for a program that would allow retention of salmon for
delivery to nonprofit foodbank organizations. The Council is scheduled
to consider this analysis at its April 1994 meeting.
Comment 5. The authority for public release of observer data on
vessel name and prohibited species bycatch amounts or rates at
Sec. 672.27(g)(1) and Sec. 675.25(g)(1) is supported, but should be
expanded to include observer data on the number of tows sampled onboard
a vessel during a weekly reporting period, the number of tows that were
basket sampled or whole-haul sampled, and the total sample weight of
basket samples. This is important, because bycatch rates based on small
sample sizes often can be misleading.
Response. NMFS concurs. The requested observer data can be provided
inseason and has been added to Sec. 672.27(g)(1) and Sec. 675.25(g)(1)
as information that may be released to the public on a weekly basis
under vessel name. NMFS has further revised the final rule to clarify
that the authority to release these data applies to both trawl and
fixed gear fisheries.
Comment 6. The authority for public release of haul-by-haul data
authorized at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) should be
expanded to include the fixed gear fisheries in the GOA and BSAI.
Response. The intent of the regulatory amendment implemented under
the referenced regulations is to address the salmon bycatch problem in
the Alaska trawl fisheries, although the data authorized for release
also will benefit an assessment of the bycatch problem for other
prohibited species. The trawl industry petitioned NMFS for the release
of these data outside of the Council process, and NMFS agreed to
include in the proposed rule the authority to release these data to
support independent initiatives by the trawl industry to better define
the salmon bycatch problem and to take action to address it.
The release of observer data on haul position and depth posed some
concern to members of the trawl industry, because of the potential for
competitive harm. Ultimately, representatives of the trawl industry
attempted to address this concern by requesting that NMFS not release
these data for those fisheries that are geographically specific in
nature, involve a small number of participants, and have relatively
small quotas.
NMFS has approved the authority to release vessel names, bycatch
amounts of salmon, and bycatch rates of other prohibited species on a
weekly basis for all observed vessels, including those participating in
the fixed gear fisheries. However, representatives for the fixed gear
fisheries have not petitioned NMFS for the release of observer data for
individual sets. Given the potential for competitive harm that could
result from the release of observer data on the position and depth of
individual sets in the hook-and-line, pot, or jig gear fisheries, NMFS
believes that separate regulatory action to implement the authority to
release these data should be developed in consultation with the Council
and affected industry members.
Comment 7. The requirement that all salmon taken as bycatch in the
BSAI groundfish trawl fisheries be retained until an observer has
counted each fish and collected appropriate scientific or biological
samples is supported. No data are available to suggest this requirement
would increase salmon bycatch mortality, and it is an essential step in
developing reliable data concerning the actual number of salmon taken
as bycatch in the trawl fisheries and identifying the stocks of origin
of salmon taken as incidental catch. The retention procedure should
require observed vessels whose operations allow sorting to store salmon
in separate bins on a haul-by-haul basis and to identify the haul(s) to
which the bin(s) relate. This procedure is necessary to determine
possible correlations between haul characteristics and salmon bycatch
rates.
Response. NMFS concurs and has revised the final rule to require
operators of observed vessels whose operation allows sorting of catch
to store salmon from different hauls separately and to identify for the
observer those hauls associated with retained salmon. In addition to
being necessary for assessing possible correlations between haul
characteristics and salmon bycatch rates, this requirement will provide
data that could be used by NMFS to assess observed salmon bycatch rates
when other than whole-haul sampling is used by the observer.
Comment 8. Any exemption for processors not carrying observers from
the requirement of retaining salmon until the number of salmon is
determined by a NMFS-certified observer is opposed. If NMFS concludes
that such exemptions may be necessary, they should be made available by
the Director, Alaska Region, NMFS (Regional Director), on a case-by-
case basis, upon a showing by the processor that the requirement would
result in undue expense or difficulty, and that the fisheries served by
the processor have a low salmon bycatch rate.
Response. In 1992 and 1993, the pollock fisheries accounted for 91
percent and 97 percent, respectively, of the total salmon bycatch in
the BSAI trawl fisheries. Mothership and shoreside processors receiving
pollock from vessels participating in this fishery typically are large
operations that process a high volume of fish. In 1993, 13 mothership
and shoreside processors participated in the pollock fishery during at
least 1 week. Twelve of these processors received over 500 mt of
groundfish during the months that they participated in the pollock
fishery and were required to obtain either 30-percent or 100-percent
observer coverage. One processor received less than 500 mt of
groundfish during the single month it participated in the pollock
fishery and was exempt from observer coverage. This processor accounted
for less than .003 percent of the total pollock harvest.
Processors that receive less than 500 mt of groundfish during a
month may never be required to obtain observer coverage during a year
if they maintain monthly groundfish processing at this low level. Given
that unobserved processors accounted for less than 1 percent of the
1993 pollock catch and that 97 percent of the 1993 salmon bycatch
occurred in the pollock fishery, NMFS maintains that providing
authority to the Regional Director to exempt these processors is not
necessary because these processors are not now observed. If the Council
determines in the future that small mothership and shoreside operations
should be subject to observer requirements, then a separate regulatory
amendment can be initiated to increase observer coverage requirements
for these operations.
Pending approval of the proposed North Pacific Fisheries Research
Plan adopted by the Council at its June 1992 meeting, observer coverage
requirements will be determined annually under regulations implementing
the second year of the Research Plan, currently scheduled for 1996. If
necessary, an increase in observer coverage of small processing
operations could be considered under this annual process to obtain
additional data on salmon bycatch associated with these operations.
Comment 9. No circumstances likely exist under which release of
haul-by-haul observer data listed in the proposed rule for the Alaska
trawl fisheries other than for rockfish, Greenland turbot, and Atka
mackerel could reasonably be expected to cause substantial competitive
harm. Fisheries other than those identified generally take place on
well-known fishing grounds, and at times of the year when a substantial
portion of the trawl fleet is fishing. Because release of information
concerning target species catch per unit of effort is not proposed for
release, it is highly unlikely that knowledge of individual haul
locations or bycatch rates would result in competitive harm to the
party providing the information. In the rare circumstance where that
may be possible, the proposed petition procedure should provide
adequate protection.
Response. Consistent with procedures set out at 15 CFR 4.7(h) for
the disclosure of commercial or financial information, NMFS has
approved regulations for the release to the public of observer data
collected onboard trawl vessels participating in a directed fishery for
groundfish other than Greenland turbot, rockfish, or Atka mackerel. In
taking this action, NMFS has acknowledged that the disclosure of
observer data on prohibited species bycatch and associated haul
location and depth information could possibly be expected to divulge
information on specific fishing operations in a manner that would
result in substantial competitive harm.
Comment 10. The authority for public release of haul-by-haul
observer data listed at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) of the
proposed rule should be expanded to include the Greenland turbot trawl
fishery, given the serious problem with halibut bycatch experienced in
this fishery. The proposed regulation does not require the release of
data from all fisheries to which it applies. If there is no consensus
that data from a particular fishery should be released, the Regional
Director can weigh objections and act accordingly. It is thus
appropriate to structure the authority rather broadly at this time to
avoid having to initiate new rulemaking on a fishery-by-fishery basis.
Response. NMFS has acknowledged that the release of observer data
on a haul-by-haul basis could divulge information on specific fishing
operations in a manner that would result in substantial competitive
harm. Except as provided by pre-notification procedures set out at 15
CFR 4.7(h), commercial or financial information cannot be released
under the Freedom of Information Act (5 U.S.C. 552(b)(4)). The
regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) satisfy this
pre-notification procedure, except for the Greenland turbot, Atka
mackerel and rockfish fisheries. At the request of representatives for
the Alaska groundfish trawl industry, these exceptions were included in
the proposed rule because of the greater potential for substantial
competitive harm that would result from the release of observer data on
haul locations, given that these fisheries are conducted by a
relatively small number of vessels, involve relatively small amounts of
quota, and are geographically specific in nature. NMFS has determined
to continue to exempt these fisheries from release of haul-by-haul
observer data under this final rule, given general concerns about the
release of these data and continued industry support for the release of
haul-by-haul observer data collected for all other trawl fisheries,
particularly those that experience the highest salmon bycatch rates.
Observer data collected on board vessels participating in the Greenland
turbot fishery still could be released under the Freedom of Information
Act, provided that NMFS provides written notice to each vessel operator
and owner of a request for disclosure and describes the nature of the
information requested for public release.
Comment 11. The preamble to the proposed rule implies that NMFS may
limit the release of haul-by-haul data to those collected from 1992
onward. This restriction is inappropriate. Data collected prior to 1992
may be a valuable source of bycatch pattern information and should be
released.
Response. NMFS intent for the release of specified observer data on
a haul-by-haul basis is to facilitate research by industry on salmon
and other prohibited species bycatch that would lead to more informed
decisions by vessel operators on alternative fishing practices to
minimize bycatch rates of these species. Pending the availability of
staff resources, NMFS concurs in the release of observer data specified
in regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2) for all prior
years where available. NMFS has taken this position after considering
(1) assertions by members of the industry that historic data are
necessary to better support independent industry initiatives, to
identify bycatch patterns, and to better address the bycatch problem in
the groundfish trawl fisheries, and (2) the potential competitive harm
resulting from the release of observer data becomes increasingly
diminished relative to historic data.
Comment 12. Regulations at Sec. 672.27(g)(2) and Sec. 675.25(g)(2)
should be revised to clarify that the specified observer data are not
released to the public under vessel name.
Response. NMFS has revised the final rule to clarify the intent of
NMFS that haul-by-haul observer data will not identify the vessel from
which the data were collected.
Comment 13. The intent of proposed regulatory language at
Sec. 672.7(n) is unclear.
Response. Section 672.7(n) prohibits vessel operators who deliver
BSAI groundfish catch to GOA processors from discarding salmon until
the salmon are counted by a NMFS-certified observer. Similarly, GOA
processors are prohibited from discarding salmon taken as bycatch in a
BSAI trawl fishery until an observer has counted each fish, unless the
processor is exempt from observer coverage. The intent of this
regulation is to ensure that salmon incidentally taken in the BSAI
trawl fisheries are counted by a NMFS-certified observer if the
associated groundfish catch is delivered to a GOA processor and to
discourage vessel operators who harvest BSAI groundfish from delivering
to GOA processors for the sole purpose of avoiding costs associated
with retaining salmon under regulations at Sec. 675.20(c) (3) and (6).
Comment 14. In the proposed rule at Sec. 675.20(c)(6)(i), the
phrase ``until all salmon have been counted by a NMFS-certified
observer'' should be revised to read ``until the number of salmon has
been determined by a NMFS-certified observer''. This revision would
allow the NMFS Observer Program to develop guidelines for observers
that provide alternative methods for estimating the number of salmon
that have been retained for enumeration. These guidelines would be
especially important if the number of salmon retained by a vessel or
processor is large and salmon cannot be individually counted without
jeopardizing other observer duties.
Response. NMFS is preparing written instructions to observers for
purposes of complying to the extent practicable with this final rule.
These instructions will include guidelines for observers for obtaining
an estimate of the number of retained salmon when time constraints or
other observer duties prevent an observer from counting each fish. NMFS
agrees that the suggested revision to regulatory text clarifies NMFS
intent and the final rule has been changed accordingly.
Comment 15. Based on information presented in the EA/RIR, the
proposed rule requiring mandatory retention of salmon until counted by
a NMFS-certified observer is unnecessary for proper scientific
management of salmon stocks, but instead is intended to meet a
political demand that activity of the groundfish fleet be curtailed. If
NMFS is adequately accounting for the take of salmon bycatch in the
North Pacific fisheries, it is unwise to burden observers with
additional duties for political reasons when observers could spend that
time ensuring the accuracy of their samples for all species for which
they are charged with gathering data.
Response. No information exists to indicate that the current level
of salmon bycatch in the Alaska trawl fisheries presents critical
conservation issues; however, low salmon returns for Western Alaska
stocks indicate that the potential exists for conservation concerns.
NMFS estimates salmon bycatch numbers in the Alaska groundfish
fisheries using observed bycatch rates, although NMFS has expressed the
opinion that observed bycatch rates could be improved if larger sample
sizes were possible. The final rule would provide data to compare
observed salmon bycatch rates with those derived through the mandatory
salmon retention requirements for purposes of improving the overall
estimate of salmon bycatch in the Alaska trawl fisheries.
NMFS shares the concern about observers being burdened with
additional obligations, especially if new obligations jeopardize the
collection-of-data on which the management of fishery resources is
based. Nonetheless, NMFS has approved regulations requiring mandatory
retention of salmon until a NMFS-certified observer has determined the
number of salmon retained and completed the collection of any
scientific data or biological samples from the retained fish. This
action is necessary to provide additional information to management
agencies and the industry on which to base the development of practical
management measures to address the salmon bycatch problem. NMFS has
determined that this information is sufficiently important to include
its collection among the duties of NMFS-certified observers to the
extent possible. NMFS is preparing written guidelines for observers to
facilitate the collection of salmon data without serious jeopardy to
other observer duties.
Classification
NMFS prepared an RIR that concludes that this rule will not have a
significant economic impact on a substantial number of small entities.
A copy of this analysis is available from the Council (see ADDRESSES).
This final rule has been determined to be not significant under
E.O. 12866.
List of Subjects in 50 CFR Parts 672 and 675
Fisheries, Reporting and recordkeeping requirements.
Dated: April 14, 1994.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 672 and 675
are amended as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.7, paragraph (o) is added to read as follows:
Sec. 672.7 Prohibitions.
* * * * *
(o) Discard any salmon taken incidental to a directed fishery for
Bering Sea and Aleutian Islands management area groundfish by vessels
using trawl gear until notified by a NMFS-certified observer that the
number of salmon has been determined and the collection of any
scientific data or biological samples has been completed as provided at
50 CFR 675.20(c)(6).
3. In Sec. 672.27, paragraph (g) is added to read as follows:
Sec. 672.27 Observers.
* * * * *
(g) Release of observer data to the public. (1) The following
information collected by observers for each catcher processor and
catcher vessel during any weekly reporting period may be made available
to the public:
(i) Vessel name and Federal permit number;
(ii) Number of chinook salmon and ``other salmon'' observed;
(iii) The ratio of total round weight of halibut or Pacific herring
to the total round weight of groundfish in sampled catch;
(iv) The ratio of number of king crab or C. bairdi Tanner crab to
the total round weight of groundfish in sampled hauls;
(v) The number of observed trawl hauls or fixed gear sets;
(vi) The number of trawl hauls that were basket sampled; and
(vii) The total weight of basket samples taken from sampled trawl
hauls.
(2)(i) The information listed in paragraphs (g)(2)(i) (A) through
(M) of this section and collected by observers from observed hauls
onboard vessels using trawl gear to participate in a directed fishery
for groundfish other than for rockfish, Greenland turbot, or Atka
mackerel may be made available to the public:
(A) Date;
(B) Time of day gear is deployed;
(C) Latitude and longitude at beginning of haul;
(D) Bottom depth;
(E) Fishing depth of trawl;
(F) The ratio of the number of chinook salmon to the total round
weight of groundfish;
(G) The ratio of the number of other salmon to the total round
weight of groundfish;
(H) The ratio of total round weight of halibut to the total round
weight of groundfish;
(I) The ratio of total round weight of herring to the total round
weight of groundfish;
(J) The ratio of the number of king crab to the total round weight
of groundfish;
(K) The ratio of the number of C. bairdi Tanner crab to the total
round weight of groundfish;
(L) Sea surface temperature (where available); and
(M) Sea temperature at fishing depth of trawl (where available).
(ii) The identity of the vessels from which the data in paragraph
(g)(2)(i) of this section are collected will not be released.
(3) In exceptional circumstances, the owners and operators of
vessels may provide to the Regional Director written justification at
the time observer data are submitted or within a reasonable time
thereafter, that disclosure of the information listed in paragraph
(g)(1) or (g)(2) of this section could reasonably be expected to cause
substantial competitive harm. The determination whether to disclose the
information will be made pursuant to 15 CFR 4.7.
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
4. The authority citation for part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 675.2 [Amended]
5. In Sec. 675.2, the definition of ``Bycatch Limitation Zone 2H''
is removed.
6. In Sec. 675.7, paragraph (p) is added to read as follows:
Sec. 675.7 Prohibitions.
* * * * *
(p) Discard any salmon taken incidental to a directed fishery for
groundfish by vessels using trawl gear until notified by a NMFS-
certified observer that the number of salmon has been determined and
the collection of any scientific data or biological samples has been
completed as provided at Sec. 675.20(c)(6).
7. In Sec. 675.20, paragraphs (c)(3) and (4) are revised and
paragraph (c)(6) is added to read as follows:
Sec. 675.20 General limitations.
* * * * *
(c) * * *
(3) The operator of each vessel regulated under this part must sort
its catch as soon as possible after retrieval of the gear and, except
as provided under paragraph (c)(6) of this section, must return all
prohibited species or parts thereof to the sea immediately, with a
minimum of injury, regardless of its condition, after allowing for
sampling by an observer if an observer is onboard.
(4) Except as provided under paragraph (c)(6) of this section, it
will be a rebuttable presumption that any prohibited species retained
onboard a fishing vessel regulated under this part was caught and
retained in violation of this section.
* * * * *
(6) Retention of salmon. (i) Except as provided in paragraph
(c)(6)(ii) of this section, the operator of a vessel and the manager of
a shoreside processing operation must not discard any salmon taken
incidental to a directed fishery for groundfish by vessels using trawl
gear until the number of salmon has been determined by a NMFS-certified
observer and the collection of any scientific data or biological
samples from the salmon has been completed.
(A) Operators of vessels carrying observers onboard and whose
fishing operations allow for sorting of groundfish catch for salmon
must retain all salmon bycatch from each haul in a separate bin or
other location that allows an observer free and unobstructed physical
access to the salmon to count each fish and collect any scientific data
or biological samples. Salmon from different hauls must be retained
separately in a manner that identifies the haul from which the salmon
were taken.
(B) Operators of vessels not carrying observers onboard or whose
fishing operations do not allow for sorting of groundfish catch for
salmon must ice, freeze, or store in a refrigerated saltwater tank all
salmon taken as bycatch in trawl operations for delivery to the
processor receiving the vessel's groundfish catch.
(C) Processors receiving groundfish harvested in a directed fishery
for groundfish using trawl gear must retain all salmon delivered by
each trawl vessel during a weekly reporting period in separate bins
marked with the vessel's name and ADF&G fish ticket number(s) for each
delivery until a NMFS-certified observer has counted each salmon and
collected any scientific data or biological samples from the salmon
delivered to the processor by that vessel. Processors without an
observer present must store whole salmon in an iced or frozen state
until an observer is available to count each fish. Salmon must be
stored at a location that allows an observer free and unobstructed
physical access to each salmon.
(ii) Mothership processor vessels and shoreside processing
facilities that are exempt from obtaining observer coverage during a
month under Sec. 675.25 or Sec. 672.27 of this chapter are exempt from
mandatory retention of salmon under this paragraph (c)(6).
(iii) Operators of vessels and managers of shoreside processing
operations that are required to retain salmon under paragraph (c)(6)(i)
of this section must designate and identify to the NMFS-certified
observer onboard the vessel or at the shoreside operation a crew person
or employee to be responsible for sorting, retention, and storage of
salmon consistent with this paragraph (c)(6). Upon the request of the
NMFS-certified observer, the designated crew person or employee also is
responsible for counting salmon and taking biological samples from
retained salmon under the direction of the observer.
(iv) Salmon must be returned to Federal waters as soon as is
practicable, with a minimum of injury, regardless of condition,
following notice by a NMFS-certified observer that the number of salmon
has been determined and the collection of any scientific data or
biological samples has been completed.
8. In Sec. 675.21, paragraphs (a)(4) and (c)(1)(iii) are removed;
paragraphs (a)(5) through (a)(7) are redesignated as paragraphs (a)(4)
through (a)(6), respectively; paragraph (c)(1)(iv) is redesignated as
paragraph (c)(1)(iii); and paragraphs (b)(1) introductory text,
(b)(2)(i) and newly redesignated paragraphs (a)(4) and (c)(1)(iii) are
revised to read as follows:
Sec. 675.21 Prohibited species catch (PSC) limitations.
(a) * * *
(4) The PSC limit of Pacific halibut caught while conducting any
trawl fishery for groundfish in the Bering Sea and Aleutian Islands
Management Area during any fishing year is an amount of Pacific halibut
equivalent to 3,775 mt of halibut mortality.
* * * * *
(b) * * * (1) Apportionment to trawl fishery categories. NMFS,
after consultation with the Council, will apportion each PSC limit set
forth in paragraphs (a) (1) through (5) of this section into bycatch
allowances for fishery categories specified in paragraph (b)(1)(iii) of
this section, based on each category's proportional share of the
anticipated incidental catch during a fishing year of prohibited
species for which a PSC limit is specified and the need to optimize the
amount of total groundfish harvested under established PSC limits. The
sum of all bycatch allowances of any prohibited species will equal its
PSC limit.
* * * * *
(2) * * * (i) NMFS, after consultation with the Council, may
apportion the halibut PSC limit for non-trawl gear set forth in
paragraph (a)(6) of this section into bycatch allowances for fishery
categories specified in paragraph (b)(2)(ii) of this section, based on
each category's proportional share of the anticipated bycatch mortality
of halibut during a fishing year and the need to optimize the amount of
total groundfish harvested under the non-trawl halibut PSC limit. The
sum of all halibut bycatch allowances will equal the halibut PSC limit
specified in paragraph (a)(6) of this section.
* * * * *
(c) * * *
(1) * * *
(iii) Halibut bycatch allowance. If, during the fishing year, the
Regional Director determines that U.S. fishing vessels participating in
any of the trawl fishery categories listed in paragraphs (b)(1)(iii)
(B) through (F) of this section in the Bering Sea and Aleutian Islands
Management Area will catch the halibut bycatch allowance, or seasonal
apportionment thereof, specified for that fishery category under
paragraph (b) of this section, NMFS will publish in the Federal
Register the closure of the entire Bering Sea and Aleutian Islands
management area to directed fishing for the species and/or species
group that comprises that fishery category (which together constitute a
species or species group for purposes of the directed fishing
standards) for the remainder of the year or for the remainder of the
season, except that when a bycatch allowance, or seasonal apportionment
thereof, specified for the pollock/Atka mackerel/``other species''
fishery category is reached, only directed fishing for pollock is
closed to trawl vessels using non-pelagic trawl gear.
* * * * *
9. In Sec. 675.25, paragraph (g) is added to read as follows:
Sec. 675.25 Observers.
* * * * *
(g) Release of observer data to the public. (1) The following
information collected by observers for each catcher processor and
catcher vessel during any weekly reporting period may be made available
to the public:
(i) Vessel name and Federal permit number;
(ii) Number of chinook salmon and ``other salmon'' observed;
(iii) The ratio of total round weight of halibut or Pacific herring
to the total round weight of groundfish in sampled catch;
(iv) The ratio of number of king crab or C. bairdi Tanner crab to
the total round weight of groundfish in sampled hauls;
(v) The number of observed trawl hauls or fixed gear sets;
(vi) The number of trawl hauls that were basket sampled; and
(vii) The total weight of basket samples taken from sampled trawl
hauls.
(2)(i) The information listed in paragraphs (g)(2)(i) (A) through
(M) of this section and collected by observers from observed hauls
onboard vessels using trawl gear to participate in a directed fishery
for groundfish other than for rockfish, Greenland turbot, or Atka
mackerel may be made available to the public:
(A) Date;
(B) Time of day gear is deployed;
(C) Latitude and longitude at beginning of haul;
(D) Bottom depth;
(E) Fishing depth of trawl;
(F) The ratio of the number of chinook salmon to the total round
weight of groundfish;
(G) The ratio of the number of other salmon to the total round
weight of groundfish;
(H) The ratio of total round weight of halibut to the total round
weight of groundfish;
(I) The ratio of total round weight of herring to the total round
weight of groundfish;
(J) The ratio of the number of king crab to the total round weight
of groundfish;
(K) The ratio of the number of C. bairdi Tanner crab to the total
round weight of groundfish;
(L) Sea surface temperature (where available); and
(M) Sea temperature at fishing depth of trawl (where available).
(ii) The identity of the vessels from which the data in paragraph
(g)(2)(i) of this section are collected will not be released.
(3) In exceptional circumstances, the owners and operators of
vessels may provide to the Regional Director written justification at
the time observer data are submitted or within a reasonable time
thereafter, that disclosure of the information listed in paragraph
(g)(1) or (g)(2) of this section could reasonably be expected to cause
substantial competitive harm. The determination whether to disclose the
information will be made pursuant to 15 CFR 4.7.
[FR Doc. 94-9482 Filed 4-19-94; 8:45 am]
BILLING CODE 3510-22-P