63880 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

because C. bairdi Tanner crab bycatch

allowances were reached.

During 1997 through October, the

total bycatch of red king crab by vessels

participating in the yellowfin sole and

‘‘other trawl’’ fisheries is estimated at

48,000 crab, considerably less than the

100,000 red king crab bycatch limit

established for the trawl fisheries in

Zone 1. NMFS anticipates that the 1998

red king crab bycatch rates in Zone 1

will be similar to those experienced in

1997 and that the red king crab bycatch

limit will remain unchanged.

In spite of anticipated 1998 red king

crab bycatch rates being significantly

lower than 2.5 red king crab/mt of

groundfish, the Council recommended

the red king crab bycatch rate standards

be maintained at this level to avoid

unusually high crab bycatch rates while

providing some leniency to those vessel

operators who choose to use large mesh

trawl gear as a means to reduce

groundfish discard amounts.

The Regional Administrator has

determined that Council

recommendations for bycatch rate

standards are appropriately based on the

information and considerations

necessary for such determinations under

§ 679.21(f). Therefore, the Regional

Administrator concurs in the Council’s

determinations and recommendations

for halibut and red king crab bycatch

rate standards for the first half of 1998

as set forth in Table 1. These bycatch

rate standards may be revised and

published in the Federal Register when

deemed appropriate by the Regional

Administrator pending his

consideration of the information set

forth at § 679.21(f)(4).

As required in § 679.2 and

§ 679.21(f)(5), the 1998 fishing months

are specified as the following periods

for purposes of calculating vessel

bycatch rates under the incentive

program:

Month 1: January 1 through January 31;

Month 2: February 1 through February 28;

Month 3: March 1 through March 28;

Month 4: March 29 through May 2;

Month 5: May 3 through May 30;

Month 6: May 31 through June 27;

Month 7: June 28 through August 1;

Month 8: August 2 through August 29;

Month 9: August 30 through October 3;

Month 10: October 4 through October 31;

Month 11: November 1 through November

28; and

Month 12: November 29 through December

31.

Classification

This action is taken under 50 CFR

679.21(f) and is exempt from OMB

review under E.O. 12866.

Authority: 16 U.S.C. 773 et seq., 1801 et

seq. and 3631 et seq.

Dated: November 26, 1997.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 97–31707 Filed 12–2–97; 8:45 am]

BILLING CODE 3510–22–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 970611133–7263–02; I.D.

052997B]

RIN 0648–AJ36

Fisheries of the Exclusive Economic

Zone Off Alaska; Improved Retention/

Improved Utilization

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues a final rule to

implement Amendment 49 to the

Fishery Management Plan for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands Area (FMP). This

final rule requires all vessels fishing for

groundfish in the Bering Sea and

Aleutian Islands Management Area

(BSAI) to retain all pollock and Pacific

cod beginning January 3, 1998, and all

rock sole and yellowfin sole beginning

January 1, 2003. This final rule also

establishes a 15-percent minimum

utilization standard for all at-sea

processors beginning January 3, 1998,

for pollock and Pacific cod and,

beginning January 1, 2003, for rock sole

and yellowfin sole. This action is

necessary to respond to the fishing

industry’s socioeconomic needs that

have been identified by the North

Pacific Fishery Management Council

(Council) and is intended to further the

goals and objectives of the FMP.

DATES: Effective January 3, 1998.

ADDRESSES: Copies of Amendment 49

and the Environmental Assessment/

Regulatory Impact Review/Final

Regulatory Flexibility Analysis (EA/

RIR/FRFA) prepared for this action may

be obtained from NMFS, P.O. Box

21668, Juneau, AK 99802, Attn: Lori J.

Gravel. Send comments regarding

burden estimates or any other aspect of

the data requirements, including

suggestions for reducing the burdens, to

NMFS and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget (OMB),

Washington, DC 20503, Attn: NOAA

Desk Officer.

FOR FURTHER INFORMATION CONTACT: Kent

Lind, 907–586–7228.

SUPPLEMENTARY INFORMATION: The

domestic groundfish fisheries in the

exclusive economic zone of the BSAI

are managed by NMFS under the FMP.

The FMP was prepared by the Council

under the Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act). Regulations

governing the groundfish fisheries of the

BSAI appear at 50 CFR parts 600 and

679.

At its September 1996 meeting, the

Council adopted Amendment 49 to the

FMP and recommended that NMFS

prepare a rulemaking to implement the

amendment. A notice of availability of

Amendment 49 was published in the

Federal Register on June 5, 1997 (62 FR

30835), and invited comment on the

amendment through August 4, 1997. A

proposed rule to implement

Amendment 49 was published in the

Federal Register on June 26, 1997 (62

FR 34429). Comments on the proposed

rule were invited through August 11,

1997. A total of twelve letters of

comment on the amendment and/or the

proposed rule were received. Nine

letters of comment were received by the

end of the comment period on

Amendment 49. Of these nine, two

comments opposed Amendment 49, and

seven comments supported approval but

recommended changes to the proposed

rule. Of the three letters of comment

received after the end of the comment

period on the amendment but before the

end of the comment period on the

proposed rule, two opposed

Amendment 49 and implementation of

the proposed rule. One supported

approval of Amendment 49 but

recommended changes to the proposed

rule. Comments on both the amendment

and the proposed rule are summarized

and responded to in the Response to

Comments section below.

Upon reviewing the reasons for

Amendment 49 to the FMP and the

comments on the proposed rule to

implement it, NMFS determined that

this action is necessary for the

conservation and management of the

groundfish fishery of the BSAI. NMFS

approved Amendment 49 on September

3, 1997, under section 304(a) of the

Magnuson-Stevens Act. Additional

information on this action may be found

in the preamble to the proposed rule

and in the EA/RIR/FRFA.

The Council also adopted a parallel

Amendment 49 to the Fishery

Management Plan for Groundfish of the

Gulf of Alaska (GOA) in June 1997 and

recommended that NMFS prepare a

rulemaking to extend the Improved
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63881

Retention/Improved Utilization (IR/IU)

program to the GOA. A proposed rule to

implement Amendment 49 in the GOA

was published in the Federal Register

on August 18, 1997 (62 FR 43977) with

comments invited through October 2,

1997.

Response to Comments

Comment 1: The IR/IU program will

severely disadvantage small entities to

the benefit of large at-sea and shoreside

processors. These impacts will be highly

allocative and are an inappropriate

result of an FMP amendment that has no

conservation purpose but is intended

solely to respond to the socioeconomic

needs of the fishing industry.

Response: The purpose of this

amendment is to reduce discards. The

EA/RIR/FRFA prepared for Amendment

49 concluded that the action could

impose significant economic impacts on

a substantial number of small entities.

The extent of the impact for a particular

operation will be directly proportional

to the level of discards of the four IR/

IU species. Vessels or fisheries that

currently discard IR/IU species at high

rates will face a substantially greater

burden than vessels or fisheries with

lower discard rates of IR/IU species. The

impact on a particular operation also is

expected to vary inversely with the size

and configuration of the operation, with

larger processors more likely to have the

space and infrastructure necessary to

retain and process IR/IU species.

Catcher/processors face greater space

constraints than onshore processors,

and are limited in their ability to

expand due to vessel moratorium,

license limitation, and U.S. Coast Guard

load line requirements. As a result, the

impacts of the IR/IU program are

expected to fall most heavily on catcher/

processors, especially smaller factory

trawlers that lack the capacity to

produce fishmeal.

During development of Amendment

49, the Council considered and rejected

alternatives that might have mitigated

impacts on smaller factory trawlers.

Alternatives that would have

established exemptions or phase-in

periods based on vessel size were

rejected because they would have

diluted expected reductions in bycatch

and discards and because they were

thought to favor sectors of the industry

with high discard rates. The Council

believed that an inevitable and

appropriate consequence of any discard

reduction program is that the

compliance burden would be

proportionate to the current bycatch and

discard rate of a particular operation.

NMFS currently is assisting with

industry efforts to develop more

selective fishing gear and fishing

techniques to reduce the adverse

economic impacts of Amendment 49.

NMFS approved a large-scale fishing

experiment in the BSAI during August

1997 to test experimental trawl gear

designed to reduce pollock bycatch in

flatfish trawl fisheries. Initial results

from the experiment have been

promising and will be made available to

the public in late 1997. These and other

efforts may assist the industry in

significantly reducing the effects of

Amendment 49 on certain trawl

fisheries. Amendment 49 provides

incentives for the Alaska groundfish

industry to develop innovative solutions

for reducing bycatch that also could be

applicable to other fisheries throughout

the United States and the world.

Comment 2: The EA/RIR/IRFA does

not calculate net economic benefits or

contain a cost benefit analysis as

required under E.O. 12866.

Response: The Office of Information

and Regulatory Affairs of the Office of

Management and Budget has concurred

with NMFS’ determination that this rule

is not significant for purposes of

Executive Order 12866. Accordingly,

the requirements of section 6(a)(3)(B)

and (C), e.g., formal benefit/cost

analysis, are not applicable to this

regulatory action. However, the

requirements of section 1(b), The

Principles of Regulation, are applicable,

including principle 6 which requires

‘‘each agency [to] assess both the costs

and the benefits of the intended

regulation and recognizing that some

costs and benefits are difficult to

quantify, propose, or adopt a regulation

only upon a reasoned determination

that the benefits of the intended

regulation justify its costs.’’ NMFS has

fully complied with this requirement.

NMFS has noted repeatedly during

the 4 years of analysis for Amendment

49 that the cost data necessary to

conduct a rigorous, quantitative net

benefit analysis are not available. When

the industry has been invited to provide

such data, it has declined to do so.

Therefore, NMFS prepared an analysis

on the basis of the best available

scientific information. This largely gross

revenue analysis was supplemented

with qualitative assessments of the

probable response of the affected

sectors, the probable environmental

response, as well as the potential price

and market response, to the proposed

action. Review and advice was sought

from the Council’s Advisory Panel and

Scientific and Statistical Committee as

well as other experts, from within the

industry and outside the industry, in an

effort to test the conclusions of the

analysis against their respective

experience and expertise. Given the

limitations on data, these experts

consistently affirmed the analytical

approach as well as the findings of the

analysis. The EA/RIR/FRFA meets the

rigor with which benefits and costs of

amendments to the FMP have been

analyzed, historically.

Comment 3: The IR/IU program may

not satisfy Magnuson-Stevens Act

provisions that require management

programs ‘‘to the extent practicable and

in the following priority—(A) minimize

bycatch; and (B) minimize the mortality

of bycatch which cannot be avoided.’’ If

no restrictions are placed on the

production of fishmeal, many

operations will have little incentive to

reduce their bycatch of undersize fish

and unwanted species. To satisfy this

requirement, the program must

demonstrate that such reductions are

the result of increased avoidance of the

types of unwanted pollock, Pacific cod,

rock sole, and yellowfin sole that

fishermen currently harvest. If the

proposed program simply causes

industry to retain and use bycatch

without increasing the avoidance of

these fish, the statutory requirement to

minimize or avoid bycatch will remain

unfulfilled.

Response: The Magnuson-Stevens Act

defines the term ‘‘bycatch’’ as ‘‘fish

which are harvested in a fishery, but

which are not sold or kept for personal

use, and includes economic discards

and regulatory discards.’’ Because the

IR/IU program requires 100 percent

retention of the four IR/IU species,

bycatch of these species, as defined in

the Magnuson-Stevens Act, will largely

be eliminated in the groundfish fisheries

of the BSAI.

With respect to the issue of

‘‘avoidance,’’ the IR/IU program will

provide significant incentives for all

sectors of the industry to avoid

unwanted harvest of IR/IU species.

While operations that have the capacity

to produce fishmeal may face less

immediate incentives to avoid

unwanted harvest of IR/IU species, the

EA/RIR/FRFA concluded that the IR/IU

program will provide an incentive for

all sectors of the industry, including

those with fishmeal processing capacity,

to avoid the unwanted harvest of IR/IU

species. This is so because processing

fishmeal draws resources away from the

production of higher value products.

However, most catcher/processors and

motherships with fishmeal processing

capacity were designed to operate in the

midwater pollock fishery. When

participating in that fishery, these

vessels already retain nearly 100 percent

of their pollock and have little

unwanted harvest of other groundfish
63882 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

species. Consequently, the IR/IU

program is expected to have less impact

on these operations.

Operations that participate in less

selective bottom trawl fisheries and that

do not have the capacity to produce fish

meal will have a significant incentive to

avoid the harvest of unwanted or untargeted IR/IU species due to the cost of

holding less valuable species in lieu of

more valuable species. The Council

expects that the economic incentive

produced by the IR/IU program will

generate innovative gear and fishing

techniques as operators develop

methods to comply with full retention

requirements in a cost-effective manner.

Currently, an association of factory

trawlers configured for head-and-gut

(H&G) processing is testing

experimental fishing gear designed to

reduce unwanted harvests of pollock

and Pacific cod in flatfish fisheries.

The Council considered and rejected

various proposals to limit production of

fishmeal. Such proposals were

considered to be unreasonably

restrictive and of questionable benefit. A

limit on fishmeal production would

impose substantial additional costs on

operations that have developed fishmeal

plants for the purpose of processing fish

waste, yet such limits would not

increase benefits to the nation.

Comment 4: Section 313(f) of the

Magnuson-Stevens Act requires that in

implementing section 303(a)(11), the

Council shall ‘‘submit conservation and

management measures to lower, on an

annual basis, for a period of not less

than 4 years, the total amount of

economic discards occurring in the

fisheries under its jurisdiction.’’ If the

proposed IR/IU program is to satisfy this

requirement, it must meet two criteria.

First it must demonstrate annual

reductions in the total amount of

economic discards over a 4-year period.

The proposed IR/IU program will result

in a 1-year reduction in economic

discards of pollock and Pacific cod,

with no further reductions scheduled

until 5 years later when a one time

reduction in rock sole and yellowfin

sole will be required. To satisfy the

statutory requirement, the Council must

identify where and how reductions in

economic discards are to occur in years

two, three, and four.

Response: See response to comment 3.

The IR/IU program prohibits economic

discards of pollock and Pacific cod

beginning January 1, 1998, making

additional reductions unnecessary for

those species. With respect to bycatch of

other species, the IR/IU program is but

one element of the Council and NMFS’s

ongoing efforts to reduce bycatch and is

not intended to reduce all forms of

bycatch occurring in the groundfish

fisheries off Alaska. Other existing

bycatch reduction programs include

time and area closures, prohibited

species catch limits, gear restrictions,

support for gear research, and the vessel

incentive program. Additional bycatch

reduction programs are also under

consideration by the Council.

Comment 5: The IR/IU proposal does

not meet the goals identified by the

Council’s problem statement.

Amendment 49 will fail to meet the

Council’s first goal to assure the longterm health of the fish stocks. The EA/

RIR/IRFA concludes that the program,

as designed, will fail to provide any

conservation or positive environmental

impact while most likely resulting in a

decrease of long-term economic benefits

to the nation. Of the industry sectors

operating in the North Pacific, only the

pollock and crab fleets lack a long-term

stable fisheries-based economy due to

limited stocks. This plan does nothing

to address the waste of crab in the

directed crab fisheries and will simply

encourage more meal production rather

than increase the supply of pollock

available for surimi and fillet

production.

Amendment 49 also will fail to meet

the Council’s second goal: reducing

bycatch, minimizing waste, and

improving utilization of fish resources.

While some short attention was paid to

defining waste, the EA/RIR/IRFA did

not sufficiently analyze the real

question raised by the program: Will we

expend more resources and receive less

benefit from our fish resources by

implementing the proposal? The

proposed IR/IU program will encourage

continued economic loss and waste by

(1) allowing fish that are currently

discarded to be turned into meal, and

(2) encouraging the use of resources to

produce products worth less than the

cost of production.

Response: See response to comments

3 and 4. Amendment 49 is only one of

many efforts by the Council to reduce

bycatch and ensure the long-term health

of fish stocks. The Council is

considering other efforts to reduce

groundfish and crab bycatch including

time and area closures, prohibited

species catch limits, research into more

selective fishing gear, and a vessel

incentive program. The EA/RIR/FRFA

prepared for Amendment 49 concluded

that the program would provide a net

benefit to the nation through a reduction

in discards and improved utilization of

species once they are harvested. The

Council concurred in this conclusion as

demonstrated by its unanimous vote to

adopt Amendment 49.

Comment 6: While both of NMFS’s

Federal Register notices and the EA/

RIR/IRFA analysis conclude that there

will be no environmental benefit

resulting from Amendment 49, Council

on Environmental Quality (CEQ)

regulations implementing NEPA still

require the preparation of an

environmental impact statement (EIS)

for this major Federal action. CEQ

regulations state that events which

trigger an EIS include such indirect

effects as changes in the use of

ecosystems, and changes in historic and

social effects, whether or not they are

indirect or cumulative (40 CFR

1508.8(b)). An action also is significant

when the effect on the human

environment is highly controversial (40

CFR 1508.27(b)(4)) or is precedent

setting (40 CFR 1508.27(b)(6)). The fact

that the primary stated goal of the

program is to avoid public censure of

‘‘waste’’ at the national level implies

that this proposal is controversial. The

EA/RIR/IRFA finds that the IR/IU

program will significantly disadvantage

an historic user group and is even

intended solely for the purpose of

meeting social needs. It certainly stands

to establish a precedent for the nation.

In other words, the EA/RIR/IRFA’s

findings clearly and unambiguously

demonstrate that the IR/IU program is a

major Federal action significantly

impacting the human environment;

therefore NEPA requires the preparation

of an EIS.

Response: NMFS has determined that

Amendment 49 will not affect

significantly the quality of the human

environment. Therefore, the preparation

of an EIS on the final action is not

required under section 102(2)(c) of

NEPA or CEQ’s implementing

regulations. This finding of no

significant impact is contained in the

EA/RIR/IRFA for Amendment 49.

Nevertheless, NMFS is currently

preparing a broader EIS on the

groundfish fisheries of the BSAI. This

EIS will consider the impacts of the

current groundfish management system

including the IR/IU program.

Comment 7: The IRFA was flawed in

that several reasonable traditional

alternatives, currently used by NMFS

and the State, were summarily rejected

without discussion by the Council and

were not analyzed in the IRFA. The

Regulatory Flexibility Act (RFA)

requires a description of ‘‘any

significant alternatives . . . which

minimize any significant economic

impact’’ (5 U.S.C. 603(c)). The IRFA

doesn’t even mention an industry

proposal to exempt unmarketable

undersize fish from the proposed rule.

Minimum size limits are currently used
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63883

in the halibut, crab, herring, and salmon

fisheries. The Council has refused to

consider industry proposals to only

require retention of fish greater than 1.0

or 1.5 lb citing enforcement concerns. A

minimum size standard applied to the

IR/IU program would make this an

effective program for reducing waste.

The EA/RIR/IRFA itself bases its cost/

benefit calculations on a set of

minimum marketable sizes. Amendment

49, as proposed, should not be approved

by NMFS, but should, instead, be

returned to the Council for serious

consideration of a viable alternative to

mitigate the impact on the small H&G

catcher/processors. The fact that, in

effect, only one alternative was

considered for improved retention is a

serious defect in the analysis, and the

fact that improved retention was

considered a different option than

improved utilization are disturbing

attempts at arguing that three options

were considered rather than one option

and the status quo. Because the option

of using traditional size restrictions is

available, this alternative should be

considered as viable for the purposes of

analysis even if the Council did not

intend to select that alternative.

Response: A wide variety of

alternatives was considered during

development of the IR/IU program.

These alternatives were analyzed in a

series of Council documents beginning

with an Implementation Issues Analysis

dated September 11, 1995. These

documents were incorporated by

reference into the final EA/RIR/FRFA.

The Council considered and rejected

minimum size limits for retention of IR/

IU species because an exemption

allowing the discard of undersize fish

would have diluted the incentives for

vessel operators to avoid the bycatch of

juvenile fish in the first place. See also

response to comment 12.

The RFA as supplemented contains

the required discussion of alternative

that will have less impact on small

entities and the reasons such

alternatives were rejected.

Comment 8: Much of the ‘‘full

utilization’’ achieved by shore-based

plants results from the production of

fishmeal. The Environmental Protection

Agency (EPA) has stated that shoreside

pollock fishmeal processors lead the

industry in terms of pollutant

discharges. In contrast, the EPA found

that discharges of seafood wastes to

deeper unimpounded offshore waters by

mobile at-sea processors do not create

the same kinds of problematic waste

piles as do shore-based processors (U.S.

EPA, Response to Comments, Seafood

Processors in Alaska, NPDES General

Permit No. AK–G52–0000 (1995)). An

IR/IU program that allows meal to meet

the increased utilization standard

creates a pollution concern. Any IR/IU

program should be designed to avoid or

minimize rather than increase the

impact of processing wastes on the

ocean ecosystem.

Response: The potential

environmental degradation resulting

from shore-based groundfish processing

varies on a case-by-case basis depending

on the form of the discharged material

and the location of the discharge. For

this reason, the EPA no longer regulates

shore-based surimi and fishmeal

processors in the BSAI under the

general permit cited in the comment. In

general, fishmeal processing transforms

the waste stream from solid to liquid

form, which may have greater or lesser

impacts on the environment depending

on the location of the discharge. In

many instances, liquid waste from

fishmeal processing may have less

impact on the environment than solid

waste because it disperses more rapidly.

As a result, the EPA now regulates each

shore-based surimi and fishmeal

processor under a separate NPDES

permit which establishes limits on both

solid and liquid waste discharges.

Shore-based processors must continue

to operate under the terms of their

NPDES permits once the IR/IU program

becomes effective.

Comment 9: If fishermen are required

to retain and market juvenile, diseased,

or damaged fish, the reputation of

Alaska seafood products on the world

market will be damaged.

Response: The final rule does not

place restrictions on types of products a

vessel may produce from IR/IU species,

nor does it restrict the industry to

production of products for human

consumption. Small, damaged, or

diseased fish may be processed into

fishmeal, fish oil, minced fish, or other

products not intended for human

consumption. Operations with the

capacity to produce fishmeal will have

little difficulty processing fish that may

not be fit for human consumption.

Operations without the capacity to

produce fishmeal may find it more

difficult to handle such fish. However,

NMFS does not expect processors to

deliberately undermine the

marketability of their food grade

products by including fish that may be

unsuitable for that purpose. NMFS

expects that most operators will comply

with the IR/IU program by developing a

range of products and use below food

grade fish to produce products not

intended for human consumption.

Comment 10: Amendment 49 should

allow for the live release of bycatch, as

encouraged by the Magnuson-Stevens

Act. Vessel operators using longline,

pot, and jig gear have the ability to

carefully release bycatch. While pollock

and Pacific cod have closed swim

bladders and may not survive release,

flatfish have open swim bladders and

will survive.

Response: Longline, pot, and jig

vessels do not encounter bycatch of rock

sole and yellowfin sole in quantities

sufficient to warrant a special

exemption for those gear types. NMFS

catch statistics indicate that longline,

pot, and jig vessels operating in the

BSAI encounter only negligible amounts

of rock sole and yellowfin sole. Longline

bycatch of these species averages 0.0

percent for rock sole and 0.2 percent for

yellowfin sole as a percentage of total

catch. Bycatch of these species by pot

and jig vessels is virtually unreported.

Consequently, a full retention

requirement for rock sole and yellowfin

sole is expected to have a negligible

effect on vessels using longline, pot, and

jig gear.

Comment 11: The final rule should

contain exemptions for diseased,

contaminated, parasite-ridden, or

damaged fish. Contaminated, diseased,

parasite-ridden, or damaged fish are

inevitably encountered in the course of

fishing and processing activities.

Retention of such fish is in conflict with

Food and Drug Administration (FDA)

Hazard Analysis Critical Control Point

(HACCP) requirements. In fact, the

HACCP plans drafted by many

companies actually require the discard

of fillet products with large amounts of

parasites in them.

Response: NMFS recognizes that some

fish may enter a processing facility that

may be below food grade (see response

to comment 9). However, the final rule

does not limit the type of products a

processor may produce from its retained

catch, nor does it establish a minimum

recovery rate for each fish. The 15-

percent minimum utilization rate

requirement in the final rule applies to

a vessel’s aggregate production from

each IR/IU species during a fishing trip,

rather than each individual fish. Many

processors in the BSAI currently utilize

damaged and parasite ridden fish in a

variety of products such as fishmeal,

fish oil, minced fish, and bait that are

not intended for human consumption.

Federal HACCP regulations require

processors to address food safety

hazards in their HACCP plans.

However, nothing in the HACCP

regulations requires processors to

discard fish that are below food grade.

Such fish may be utilized in a variety

of non-food products. Seafood

processors that currently rely on

discarding of whole fish to comply with
63884 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

HACCP requirements will need to

modify their HACCP plans to comply

with the provisions of the IR/IU

program.

The Council and NMFS considered

and rejected various exemptions for

damaged and parasite-ridden fish for a

variety of reasons. An exemption

allowing discards of fish that are

damaged in the course of handling and

processing could undermine the

effectiveness of the IR/IU program and

render it unenforceable. NMFS believes

that such an exemption would provide

an incentive for processors to

deliberately damage quantities of IR/IU

species that they would prefer not to

retain and process for economic reasons.

NMFS does not have statistics on the

percentage of fish that are rendered

unsuitable for food products as a result

of parasites. Various parasites are

commonly encountered in BSAI

groundfish catches, and processors have

developed various techniques for

parasite removal during processing. An

exemption that would allow discarding

of fish with parasites could undermine

the effectiveness of the IR/IU program

and allow wholesale discards of

marketable fish because some form of

parasite is likely to be encountered in

most pollock and Pacific cod.

The Council and NMFS recognize that

retention of damaged fish may pose a

problem for certain sectors of the

industry. Processors with the capacity to

produce fishmeal are unlikely to be

affected because damaged and parasiteridden fish are suitable for fishmeal

processing. Processors without fishmeal

plants may find it more difficult to

produce marketable products from

damaged fish. To address these

concerns, the Council voted to establish

an IR/IU implementation committee

composed of representatives from

industry, conservation groups, and

management agencies. This IR/IU

implementation committee will be

charged with examining problems that

surface during implementation of the

IR/IU program and providing the

Council and NMFS with

recommendations for changes and

modifications to the program that may

prove necessary. NMFS intends to work

closely with the Council and industry

during implementation of Amendment

49 to further refine aspects of the

program as problems become apparent

during implementation.

Comment 12: The proposed IR/IU

program should contain exemptions for

undersize fish. Most fish processing

equipment is limited to processing fish

within certain size ranges. For

technological reasons, some processors

may be unable to process fish that fall

outside these size parameters. A

minimum size standard would increase

the net economic benefits to the nation

as a result of the IR/IU program by not

imposing costs on industry to process

unmarketable undersize fish.

Response: Processors with fishmeal

plants will have no difficulty processing

undersize or juvenile fish. However,

NMFS recognizes that processors

without fishmeal plants may be forced

to process undersize fish into products

of little or no value, such as whole

frozen fish. During early development of

the IR/IU program, the Council

considered and rejected exemptions for

juvenile fish because an exemption

allowing the discard of undersize fish

would not have provided vessel

operators an incentive to avoid the

bycatch of juvenile fish in the first

place. The intent of the IR/IU program

is to provide industry with incentives to

develop more selective fishing

techniques, and that objective is also

underscored in the Magnuson-Stevens

Act. To that end, NMFS is currently

sponsoring research into more selective

fishing gear such as larger mesh

codends and trawl escape panels, and

believes that fishing selectivity will

improve as vessel operators endeavor to

avoid bycatch of juvenile fish. To the

extent that vessel operators are able to

avoid the capture of juvenile fish in the

first place, the impacts of the full

retention requirement will be reduced.

Comment 13: The IR/IU program

should not require the retention and

utilization of previously-caught fish

which may be brought on board a vessel

through fishing or retrieval of lost gear.

For example, last year a vessel retrieved

a codend that had been lost in a pollock

fishery 4 months earlier. The codend

was still full of pollock (approximately

80 mt). The fish had begun to putrefy

and the gas caused the codend to float

to the surface. The vessel that retrieved

the codend had to bring the fish on

board to dump the codend. According to

the proposed rule, that vessel would

have been required to retain all pollock

brought on board the vessel without

distinction as to their condition or the

circumstances involved. During the

yellowfin sole fishery, dead yellowfin

sole commonly are caught that had been

previously discarded by other vessels.

Under the IR/IU program, discard of IR/

IU species may be required for a vessel

to comply with directed fishing

closures. Vessels should not be required

to retain and utilize dead and putrefying

fish that were previously caught and

discarded by other vessels.

Response: NMFS agrees. The final

rule has been modified to allow for the

discard of previously caught fish. Vessel

operators should not log previously

caught fish as part of their round-weight

catch of an IR/IU species. NMFS daily

fishing logbooks and daily cumulative

production logbooks already provide

discard code 97 for previously

discarded (decomposed) fish taken with

trawl gear in current fishing efforts. This

code also should be used when logging

discards of previously caught IR/IU

species.

Comment 14: Since the purpose of the

IR/IU program is to reduce waste in the

groundfish fishery, NMFS should

review the advisability of maintaining

the current restrictions on the amount of

pollock roe a vessel is allowed to have

on board at any point in time. Those

restrictions were adopted as an indirect

method of prohibiting the practice of

roe-stripping. Although well intended,

and supported by industry at the time

they were initially imposed, the current

regulations have actually resulted in the

discarding of roe during time periods of

peak roe recovery. Such a result is

incongruous in light of current efforts to

reduce waste in the fishery—especially

in view of the discarding restrictions

incorporated in Amendment 49. NMFS

should reconsider the need for the roe

retention limits once IR/IU regulations

go into effect and, if possible, increase

the amount of retainable roe so as to

avoid situations where vessels are

required to discard the most valuable of

all products produced by the pollock

fishery.

Response: NMFS agrees. The current

regulations governing retention of

pollock roe were adopted by NMFS in

1990 to implement Amendment 13/19

to the groundfish fishery management

plans for the BSAI and GOA.

Amendment 13 to the BSAI FMP states:

Roe-stripping is prohibited, and the

Regional Director is authorized to issue

regulations to limit this practice to the

maximum extent practicable. It is the

Council’s policy that the pollock harvest

shall be utilized to the maximum extent

possible for human consumption.

Among the options considered by the

Council during analysis of Amendments

13/19 was an option that would have

required full utilization of pollock, a

more restrictive option than the

prohibition on roe stripping that was

adopted by the Council at that time. The

IR/IU program established by

Amendment 49 in effect implements the

more restrictive roe-stripping

prohibition originally rejected by the

Council for Amendment 13.

Consequently, previously adopted

regulations that limit roe-stripping

through maximum retainable

percentages may be redundant and

unnecessary. For that reason, NMFS
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63885

intends to work with the Council and

the Council’s IR/IU implementation

committee to determine if existing

limits on roe retention continue to serve

a purpose after implementation of the

IR/IU program.

Comment 15: The IR/IU program

should contain a provision to allow

trawlers to bleed codends when

necessary for vessel safety. On occasion

a vessel may accidentally harvest more

fish than can be safely brought on board.

Vessel operators should not be faced

with either bringing the fish on board

and risking the safety of the entire crew

and vessel, or violating IR/IU

regulations by discarding the portion of

the catch that cannot be brought on

board safely.

Response: The Council’s IR/IU

industry committee considered and

rejected proposals to allow codend

bleeding. The IR/IU committee believed

that this practice should stop, and that

a prohibition on bleeding codends

would provide an incentive for

fishermen to fish in a more cautious

manner when their holds are near

capacity. In addition, many catcher

vessels have the capacity to carry excess

catch on deck safely, although fish

retained in such a manner (without

refrigeration) may not be desired by the

processor to which they are delivering.

NMFS Enforcement and the U.S. Coast

Guard generally are not in a position to

evaluate whether a particular instance

of discarding was motivated by

legitimate safety concerns or by

economic reasons. Nevertheless, should

a vessel operator believe it necessary for

the safety of the vessel to bleed a

codend, the amount of discards should

be entered into the vessel’s daily fishing

log along with a description of the

extenuating circumstances. NMFS will

review such instances on a case-by-case

basis with consideration given to the

extent of the violation and possible

mitigating circumstances.

Comment 16: The IR/IU program

should provide a buffer between

maximum retainable bycatch (MRB)

percentages under the directed fishing

standards and the IR/IU minimum

retention requirements. Under the

proposed rule, the combination of these

two standards results in a single point

(20 percent for pollock and Pacific cod

and 35 percent for rock sole and

yellowfin sole) that a vessel operator

must achieve to comply with both

standards simultaneously. Without

onboard scales, no catcher vessel can

retain precisely 20 percent of an IR/IU

species. This is true for both vessels that

partially sort their catch on board and

for those that pump fish directly into

refrigerated seawater. This situation is

an untenable position for a catcher

vessel and differs greatly from the

situation for a catcher/processor, which

may meet both standards by monitoring

the number of cases of product on board

and maintaining appropriate ratios. If

MRB requirements take precedence over

IR/IU requirements then the proposed

rule should lower the retention standard

when an IR/IU species is closed to

directed fishing to provide a range of 15

to 20 percent for pollock and Pacific cod

and 25 to 35 percent for rock sole and

yellowfin sole within which catcher

vessels could retain or discard IR/IU

species at their option.

Response: The Council, through its

IR/IU industry committee, considered

and rejected a proposal to provide a

buffer between IR/IU retention

requirements and MRB amounts. The

IR/IU industry committee

recommended, instead, that this issue

be reexamined once the program is

underway and that possible solutions

could be developed at that time if

necessary.

When an IR/IU species is closed to

directed fishing, the IR/IU program does

not require a vessel operator to retain

exactly the MRB amount for that

species. Rather, the program simply

requires the retention of all catch of that

species up to the MRB amount in effect

for that species. A vessel operator who

maintains a bycatch rate below the MRB

percentage in effect for an IR/IU species

will avoid the difficult scenario

described in the comment. The

avoidance of bycatch is an underlying

objective of the Magnuson-Stevens Act

and one objective of the IR/IU program

is to encourage vessel operators to

simply avoid the harvest of IR/IU

species when those species are closed to

directed fishing. To that end, NMFS is

actively promoting the development of

more selective gear technologies and is

assisting industry efforts to identify and

avoid areas with high bycatch rates.

NMFS believes that attempts should

first be made to avoid excessive bycatch

of IR/IU species closed to directed

fishing before retention standards are

relaxed to accommodate discards of

such bycatch.

Comment 17: The 15-percent

minimum utilization rate standard in

the proposed rule depends on accurate

estimates of a vessel’s total catch. We

are concerned that measurement error

by observers in the calculation of total

catch of each IR/IU species may make a

vessel accountable for processing more

fish than it actually caught. Due to the

vagaries of species composition

sampling, an observer’s estimate of total

catch of an IR/IU species during a

specific haul may differ from the

vessel’s actual catch by a significant

percentage. Based on our experience

with the accuracy of species

composition sampling, this ‘‘phantom

fish’’ problem could occur to a

significant degree.

Response: NMFS recognizes the

problems associated with calculating

the total catch of each IR/IU species on

a haul-by-haul basis. However, the IR/IU

program does not depend on observer

estimates of total catch of each IR/IU

species for monitoring and enforcement

of the 15-percent minimum utilization

rate. Instead, each processor is required

to log its total catch weight of each IR/

IU species on a haul-by-haul basis.

NMFS logbooks will be revised to

accommodate collection of this data.

When verifying compliance with the 15-

percent minimum utilization rate, a

catcher/processor’s logged round-weight

catch of an IR/IU species will be

compared against the weight of products

produced from that IR/IU species.

At this point, NMFS has not

established specific guidelines or

procedures for measurement of the

round-weight catch of IR/IU species on

board vessels. Vessel operators are free

to measure their round-weight catch of

each IR/IU species in the manner they

determine to be most appropriate to

their circumstances. When observers are

present, vessel operators are free to use

the observer’s estimate of total catch, or

they may independently measure the

round-weight catch of each IR/IU

species.

NMFS chose not to base monitoring

and enforcement of the 15-percent

utilization standard on observer

estimates of round-weight catch because

not all vessels have 100-percent

observer coverage, and observers, when

present, may not sample every haul. If

observer estimates were used to monitor

compliance with the IR/IU program,

then vessels without observer coverage

would, in effect, be exempt from the

program. Nevertheless, NMFS may use

observer data as well as any additional

information that may be available to

verify the accuracy of a vessel’s logged

round-weight catch of IR/IU species.

The deliberate under-logging of roundweight catch to evade minimum

utilization requirements is a violation of

NMFS recordkeeping and reporting

requirements and would be subject to

enforcement action.

Comment 18: As indicated in the EA/

RIR/IRFA, implementation of the IR/IU

program requires parallel State of

Alaska (State) regulations for onshore

processors. In the absence of parallel

State regulations, catcher vessels will be

placed in an untenable position if

onshore processors refuse to accept their
63886 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

catch and Federal regulations prohibit

them from discarding at sea. Therefore,

implementation of the IR/IU program

should be delayed until State IR/IU

regulations are in place.

Response: The State is currently

developing a parallel IR/IU program that

would establish retention and

utilization requirements for onshore

processors, and require onshore

processors to accept deliveries of IR/IU

species. The Alaska Department of Fish

and Game (ADF&G) has indicated that

under existing State statutes that

prohibit roe stripping and waste of

pollock, the State has authority to

implement IR/IU regulations to govern

onshore processing of pollock. ADF&G

has indicated that the State is

proceeding with implementation of IR/

IU regulations to govern onshore

processing of pollock that would be

effective January 3, 1998. However,

ADF&G has indicated that parallel IR/IU

regulations to govern onshore

processing of Pacific cod may not be in

place until mid-1998 because a statutory

change is necessary before the State can

regulate onshore processing of Pacific

cod.

At the September 1997 Council

meeting, NMFS met with

representatives for catcher vessel

operators and concluded that parallel

State regulations for pollock will

address the concerns of the catcher

vessel fleet on an interim basis provided

the State also proceeds with parallel

State regulations for Pacific cod. Catcher

vessel operators are most concerned

about being able to deliver pollock

bycatch to processors that have not

traditionally processed pollock in the

past. Catcher vessel operators indicate

that they are much less concerned about

finding onshore markets for Pacific cod.

Comment 19: The EA/RIR/IRFA

clearly concludes that adoption of

parallel IR/IU regulations by the State is

critical to the success of the program.

The State, acting through the

Commissioner of Fish and Game,

recently argued in Alaska Superior

Court that regulations allowing the roe

stripping of salmon and discard of 100

percent of the salmon carcasses were

legal under the Alaska anti-waste statute

(Callaghan v. Alaska, No. 3AN–96–8963

Civ., Slip Op. (3d Super. Ct. Alaska July

14, 1997)). In Callaghan, the State

Attorney General justified the discard of

salmon citing the Commissioner of Fish

and Game’s finding that harvesters

‘‘might not harvest these salmon

because of lack of markets.’’ In finding

for the State, the Court relied in part on

a finding by the Commissioner of Fish

and Game that ‘‘catching and processing

the entire fish would result in a

financial loss’’ (Id. at 8). In short, the

State prevailed arguing that (1) it is not

waste to discard unmarketable fish, and

(2) ADF&G and the State Attorney

General are justified in not enforcing the

State of Alaska anti-waste laws. We

believe, therefore, that NMFS cannot

reasonably conclude that the State of

Alaska will implement or enforce

parallel IR/IU regulations for onshore

processors. Without implementation

and enforcement of parallel State

regulations, the IR/IU program should

be disapproved.

Response: See response to comment

18. Throughout Council development of

the IR/IU program, the State has

expressed its intent to promulgate

parallel IR/IU regulations for onshore

processors. The State was a principal

proponent of the IR/IU program

throughout the Council process, and

NMFS has no reason to believe that the

State will fail to follow through with its

commitment to implement parallel IR/

IU regulations for onshore processors.

Comment 20: NMFS’ ability to

determine if the proposed IR/IU

program satisfies the law and meets the

intent of the Council depends on its

ability to monitor and measure the

extent to which vessels avoid bycatch.

However, the proposed program

includes no such monitoring

mechanism. In fact, throughout the

proposed amendment, and also the

proposed rule, limitations and

difficulties associated with monitoring,

enforcement, and compliance with the

program are prominent. There is no

explicit discussion of a monitoring

system geared to assess the efficacy of

the program. Further, at the June 1997

Council meeting, representatives of

NMFS recognized that the program does

not include suitable methods by which

to measure its success in meeting stated

intent or satisfying legal requirements.

This lack of a monitoring program is

directly counter to the draft regulations

NMFS will soon propose to help

Councils implement bycatch reduction

requirements. The proposed revisions to

the guidelines for Magnuson-Stevens

Act national standards include the

following section for bycatch reduction

requirements:

Implementation and monitor selected

[bycatch reduction] management measures.

Effects of implemented measures should be

evaluated routinely. Monitoring systems

should be established prior to fishing under

the selected management measures. Where

applicable, implementation plans should be

developed and coordinated with industry

and other concerned organizations to identify

opportunities for cooperative data collection,

coordinating data management for cost

efficiency and avoidance of duplicate effort.

Response: Monitoring and evaluation

of the IR/IU program will be

accomplished primarily through the use

of existing sources of data on the catch,

retention, and utilization of IR/IU

species in the BSAI. The groundfish

fisheries of the BSAI are among the most

extensively monitored fisheries in the

United States and are subject to the

most extensive observer coverage

requirements of any fishery in the

United States. NMFS’s groundfish

monitoring program gathers data from a

variety of sources including observer

reports, industry-submitted weekly

production reports, NMFS daily fishing

logbooks, and ADF&G fish tickets. These

data sources will enable NMFS to assess

the effectiveness of the IR/IU program

on a fleet-wide basis. Where necessary,

existing data collection programs are

being adjusted to accommodate the

collection of data necessary for

monitoring the IR/IU program. For

example, NMFS catcher vessel daily

fishing logbook, catcher/processor daily

fishing logbook and mothership

cumulative production logbooks are

being revised to accommodate the

collection of round-weight catch data

for IR/IU species on a haul-by-haul

basis.

Changes From the Proposed Rule

Four changes were made from the

proposed rule in response to comments:

1. A provision was added at

§ 679.27(h) to allow for the discard of

previously caught fish.

2. The prohibition on discard of

products from IR/IU species at

§ 679.27(e) was revised to allow the

discard of products when necessary to

comply with a directed fishing closure.

3. The definition of ‘‘fishing trip’’ at

§ 679.2 was revised to specify that it

applies to the IR/IU program as well as

to directed fishing closures.

4. The proposed rule contained

separate utilization requirements based

on a fishing trip for catcher/processors

and a reporting week for motherships.

In the final rule, these were combined

into a single utilization standard based

on a fishing trip for both catcher/

processors and motherships.

Summary of the Final Rule and Guide

to Compliance

The following section in questionand-answer format describes and

summarizes the requirements of the

final rule and is intended to serve as a

compliance guide for vessel owners and

operators.
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63887

Who Must Comply With IR/IU

Regulations?

If you own or operate a vessel fishing

for groundfish in the BSAI or processing

groundfish harvested in the BSAI, you

must comply with the IR/IU regulations

regardless of your vessel’s size, gear

type, or target fishery. Because the

Magnuson-Stevens Act does not

authorize NMFS to regulate onshore

processing of fish, these requirements

do not apply to onshore processors.

Parallel regulations to extend IR/IU

requirements to onshore processors will

be issued by the State of Alaska.

Which Species Must Be Retained?

The IR/IU program defines four

groundfish species as IR/IU species:

pollock, Pacific cod, rock sole, and

yellowfin sole. Retention and utilization

requirements apply to pollock and

Pacific cod beginning January 3, 1998.

The requirements will apply to rock sole

and yellowfin sole beginning January 1,

2003. The purpose of the 5-year delay

for rock sole and yellowfin sole is to

provide industry with sufficient time to

develop more selective fishing

techniques and/or markets for these

fish.

What Are the Retention Requirements

for Catcher Vessels When Directed

Fishing Is Open?

The retention requirements for all

vessels are set out in table format at

§ 679.27(c)(2). If you own or operate a

catcher vessel, and directed fishing for

an IR/IU species is open, you must

retain all fish of that species brought on

board your vessel until the fish are

lawfully transferred or sold to an

authorized party such as a processor

operating with a Federal processor

permit. This requirement applies to all

IR/IU species you have caught as well

as all IR/IU species you have received

via transfer from another vessel.

What Are the Retention Requirements

for Catcher Vessels When Directed

Fishing Is Closed?

If you own or operate a catcher vessel

and an IR/IU species is closed to

directed fishing, you must retain all fish

of that species up to the MRB amount

in effect for that species. If your catch

of an IR/IU species exceeds the MRB

amount in effect for that species, your

catch in excess of the MRB amount must

be discarded. Because the MRB amount

for a vessel is a running total based on

the retained catch of species open to

directed fishing, you may find it

necessary to discard excess bycatch of

an IR/IU species during the early part of

a fishing trip and may not subsequently

encounter any additional bycatch of that

IR/IU species during the fishing trip. In

such an instance, you would be in

compliance with the IR/IU program

even though the percentage of that IR/

IU species in your delivery may be

below the MRB and you discarded catch

of that species earlier in the fishing trip.

The simplest way to simultaneously

comply with directed fishing closures

and the IR/IU retention requirements is

to avoid excessive bycatch of IR/IU

species that are closed to directed

fishing. If you catch less than the MRB

percentage for an IR/IU species, you

simply retain your entire catch of that

species and avoid the difficulty

associated with calculating how much

fish to discard. While NMFS encourages

vessel operators to avoid bycatch of IR/

IU species that are closed to directed

fishing, at times avoidance may be

difficult. Vessel operators who

frequently exceed the MRB amount in

effect for an IR/IU species are

encouraged to develop appropriate

catch measurement techniques, such as

measured fish-hold volumes or on-board

scales. At this point, NMFS has not

established standards for measurement

of catch on catcher vessels and intends

to seek input from industry on

appropriate and cost-effective

measurement techniques.

What Are the Retention Requirements

for Catcher/Processors When Directed

Fishing Is Open?

If you own or operate a catcher/

processor and directed fishing for an IR/

IU species is open, you must retain a

primary product from all fish of that

species brought on board your vessel

until such products are lawfully

transferred to an authorized party. This

includes all fish you have caught as well

as all fish you have received via transfer

from another vessel. You may use any

primary product, except roe, to meet

this minimum retention requirement.

The IR/IU program does not limit or

define the types of primary products

that must be produced from each IR/IU

species, provided that all primary and

ancillary products are logged in your

daily cumulative production logbook

(DCPL). In addition, whole fish may be

considered a product for the purpose of

this program provided that they are

logged as whole fish in your DCPL.

What Are the Retention Requirements

for Catcher/Processors When Directed

Fishing Is Closed?

If you own or operate a catcher/

processor and an IR/IU species is closed

to directed fishing, you must retain a

primary product from all fish of that

species brought on board your vessel up

to the point that the round-weight

equivalent of primary products from

that species equals the MRB amount for

that species. The simplest way to meet

this requirement is to avoid bycatch of

an IR/IU species that is closed to

directed fishing so that your production

from that species does not approach the

MRB percentage in effect for that

species.

To monitor your vessel’s compliance,

you must track, on a running basis, both

the round-weight equivalent of primary

products from your basis species, i.e.,

those species open to directed fishing,

and the round-weight equivalent of your

primary products from the IR/IU species

closed to directed fishing. As long as the

round-weight equivalent of your

primary products from the IR/IU species

closed to directed fishing is at or below

the MRB amount in effect for that

species, you must retain a primary

product from all catch of that species. If

during the course of a fishing trip you

find that you have exceeded the MRB

amount for an IR/IU species, you are

permitted to discard product from that

species, if necessary, to bring your

operation into compliance with the

directed fishing closure. This is the only

instance in which you are permitted to

discard products from IR/IU species.

What Is the Definition of a Fishing

Trip?

The definition of a fishing trip used

to monitor compliance with the IR/IU

program is the same definition of a

fishing trip currently used to monitor

compliance with directed fishing

closures. You are engaged in a fishing

trip from the time you begin or resume

harvesting, receiving, or processing

groundfish in an area until: (1) You

offload or transfer all fish or fish

product from your vessel; (2) you enter

or leave an area where a different

directed fishing prohibition applies; or

(3) you come to the end of a weekly

reporting period, whichever comes first.

This definition of fishing trip applies to

catcher vessels, catcher processors, and

motherships.

What Are the Retention Requirements

for Motherships?

The retention requirements for

motherships and catcher/processors are

identical. No distinction is made

between IR/IU species that you have

caught and IR/IU species you have

received through transfer or delivery

from another vessel.

Under What Circumstances May IR/IU

Species Be Released Before They Are

Brought on Board?

The intentional discard of IR/IU

species prior to bringing them on board
63888 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

your vessel, such as bleeding codends or

shaking fish off longlines, is prohibited.

However, NMFS recognizes that some

escapement of fish from fishing gear

does occur in the course of fishing

operations. Therefore, incidental

escapement of IR/IU species, such as

fish squeezing through mesh or

accidently dropping off longlines, will

not be considered a violation unless the

escapement is intentionally caused by

action of the vessel operator or crew.

What if I Must Bleed a Codend for the

Safety of My Vessel?

The IR/IU program contains no

exemption to allow the bleeding of

codends for safety reasons. NMFS urges

vessel operators to fish in a cautious

manner when their fish holds are near

capacity to avoid catching more fish

than can be retained safely. If you

believe that circumstances require you

to bleed a codend or otherwise discard

IR/IU species for the safety of your

vessel, you must log the amount of

discard in your daily fishing logbook

(DFL) and describe the circumstances

surrounding the incident. Failure to log

such an incident is a violation of NMFS

recordkeeping and reporting

requirements. NMFS will review such

incidents on a case-by-case basis with

consideration given to the extent of the

violation and possible mitigating

circumstances.

Must I Retain Bycatch of Decomposed

Fish Previously Discarded by Other

Operations?

You may discard any bycatch of

previously discarded fish. When you

encounter such fish, they should not be

recorded in your logbook as part of your

round-weight catch of an IR/IU species.

Discards of previously discarded fish

should be logged using discard code 97,

which is for discards of previously

discarded, i.e., decomposed, fish taken

with trawl gear in current fishing efforts.

May I Discard Any Products Produced

From IR/IU Species?

Discard of retained products from an

IR/IU species is prohibited unless

discarding of product is necessary to

comply with a directed fishing closure.

May I Discard Fish or Products

Transferred From Another Vessel?

The retention requirements of the IR/

IU program apply to all fish brought on

board your vessel, regardless of whether

they were harvested by your vessel or

transferred from another vessel. You are

prohibited from discarding any products

produced from IR/IU species that were

transferred to you from another vessel.

May I Use IR/IU Species as Bait?

IR/IU species may be used as bait

provided the bait is physically attached

to authorized fishing gear when

deployed. Dumping IR/IU species as

loose bait (e.g., chumming) is

prohibited.

How Is the 15-Percent Minimum

Utilization Rate Calculated When

Directed Fishing Is Open?

If directed fishing for an IR/IU species

is open, your total weight of retained or

lawfully transferred products produced

from IR/IU species harvested or received

by your vessel during a fishing trip must

equal or exceed 15-percent of your

round-weight catch of that species

during the same fishing trip.

How Is the 15-Percent Minimum

Utilization Rate Calculated When

Directed Fishing Is Closed?

When directed fishing for an IR/IU

species is closed, your total weight of

retained or lawfully transferred

products produced from IR/IU species

harvested or received by your vessel

during a fishing trip must equal or

exceed either 15-percent of the MRB

amount in effect for that species or 15-

percent of the round-weight catch of

that species, whichever is lower. You

are only required to utilize those fish

that you are required to retain under the

retention requirements of the IR/IU

program. For example, if you have

minimal bycatch of an IR/IU species

closed to directed fishing (below the

MRB amount), your total weight of

retained products must equal or exceed

15-percent of your round-weight catch

of that species. If your bycatch of an IR/

IU species closed to directed fishing is

high enough that you are forced to

discard a portion of your catch to avoid

exceeding the MRB amount, the 15-

percent utilization rate would be

applied against the MRB amount and

not against your total catch of that

species prior to discarding. You must

simultaneously comply with both the

retention and utilization requirements

of the IR/IU program. Compliance with

one standard in the absence of the other

would be a violation.

How Do Utilization Requirements Differ

Between Catcher/Processors and

Motherships?

The only difference between the

utilization requirements for catcher/

processors and motherships is that the

15-percent minimum utilization rate is

applied during the course of a fishing

trip for catcher/processors and during

the course of a reporting week for

motherships. For the purpose of the IR/

IU program, NMFS has defined the term

‘‘fishing trip’’ in the same manner as it

is defined for the purpose of monitoring

directed fishing closures.

How Do I Calculate My Round-Weight

Catch of IR/IU Species?

If you operate a catcher vessel or

catcher processor, you must record the

round-weight catch of all IR/IU species

on a haul-by-haul basis. If you operate

a mothership, you must record the

round weight of all IR/IU species

received on a delivery-by-delivery basis.

If you have an observer aboard your

vessel, you are free to use the observer’s

estimates of round-weight catch of each

IR/IU species, but you are not required

to do so. At this point, NMFS has not

established specific guidelines or

procedures for measurement of the

round-weight catch of IR/IU species on

board vessels. Vessel operators are free

to measure their round-weight catch of

each IR/IU species in the manner they

determine to be most appropriate to

their circumstances. However, NMFS

may verify the accuracy of a vessel’s

reported round-weight catch of IR/IU

species by comparison to observer data

and by any other means that may be

available. Deliberate under-logging of

the round-weight catch of an IR/IU

species is a violation of NMFS

recordkeeping and reporting

requirements and is subject to

enforcement action.

What Changes to Recordkeeping and

Reporting Requirements Are Included

in the IR/IU Program?

This final rule includes changes to

existing recordkeeping requirements to

aid the monitoring and enforcement of

the IR/IU program. Beginning January 3,

1998, all catcher vessels and catcher/

processors that are currently required to

maintain NMFS logbooks are required to

log the round-weight catch of pollock

and Pacific cod in the NMFS catcher

vessel DFL or catcher/processor DCPL

on a haul-by-haul or set-by-set basis.

Motherships are required to log the

receipt round weight of pollock and

Pacific cod in the mothership DCPL on

a delivery-by-delivery basis. Beginning

January 1, 2003, this requirement will

extend to rock sole and yellowfin sole.

These changes are necessary to provide

vessel operators and enforcement agents

with round-weight information for each

IR/IU species in order to monitor

compliance with the IR/IU program.

Additional Technical Changes to

Existing Regulations

The definition of ‘‘fishing trip’’ at

§ 679.2 is revised to specify that it

applies to the IR/IU program as well as

to directed fishing closures. This change
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63889

is necessary to clarify the meaning of

the term ‘‘fishing trip’’ as it applies to

the IR/IU program.

The definition of ‘‘round weight or

round-weight equivalent’’ at § 679.2 is

revised by restricting the definition to

‘‘round-weight equivalent’’. The term

‘‘round weight’’ is already defined by

NMFS in regulations appearing at 50

CFR part 600 and does not need to be

re-defined in regulations at § 679.2.

The prohibition on discard of pollock

product at § 679.20(g)(5)(ii) is revised to

allow the discard of product when

necessary to comply with a directed

fishing closure. This change is necessary

to prevent a conflict with the

regulations at § 679.20(i) that implement

the IR/IU program.

Regulations at § 679.50 (c) and (d),

which specify observer coverage

requirements for motherships based on

‘‘round weight or round-weight

equivalent’’ of groundfish processed, are

revised by removing the term ‘‘round

weight.’’ Observer coverage

requirements for motherships during a

calendar month would be based only on

the round-weight equivalent of

groundfish processed. This change is

necessary because the terms ‘‘round

weight’’ and ‘‘round-weight equivalent’’

would no longer be synonymous under

the final rule.

Classification

The Administrator, Alaska Region,

NMFS, determined that Amendment 49

is necessary for the conservation and

management of the groundfish fishery of

the BSAI and that it is consistent with

the Magnuson-Stevens Act and other

applicable laws.

This rule contains a collection-ofinformation requirement subject to the

Paperwork Reduction Act. The

collection of this information has been

approved by the Office of Management

and Budget, OMB Control Number

0648–0213.

Notwithstanding any other provision

of the 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.

Public comment is sought regarding:

Whether this collection of information

is necessary for the proper performance

of the functions 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.

An RIR was prepared for this final

rule that describes the management

background, the purpose and need for

action, the management action

alternatives, and the social impacts of

the alternatives. The RIR also estimates

the total number of small entities

affected by this action and analyzes the

economic impact on those small

entities.

An FRFA has been prepared for this

action and consists of the EA/RIR/FRFA

and the preambles to the proposed and

final rules implementing this action.

The analysis examines the economic

effects of this final rule by fishery and

gear type and makes the following

conclusions: (1) The economic effects of

the final rule on vessels using longline,

jig, and pot gear would not be

significant; (2) the economic effects of

the final rule on trawl catcher vessels

and shore-based processors would not

be significant; and (3) the economic

effects of the final rule on trawl catcher/

processor operations may or may not be

significant depending upon the fishery

as well as the size and processing

capacity of the vessel in question.

Under the category of trawl catcher/

processors, the economic effects on

vessels participating in the pollock,

sablefish, Greenland turbot, rockfish,

and Atka mackerel fisheries would not

be significant. However, the economic

effects on vessels participating in the

Pacific cod, rock sole, yellowfin sole,

flathead sole and ‘‘other’’ flatfish fishery

would be significant. The reason is that

the bycatch of IR/IU species in these

fisheries is substantial. The quantity of

additional retained catch that operators

in these fisheries would be required to

handle under the final rule would

impose significant operational costs on

these fisheries, taken as a whole. This is

especially true for products for which

markets are limited or undeveloped

(e.g., small Pacific cod, male rock sole,

and H&G pollock). Current prices for

these products may be insufficient to

cover the costs of their production.

In general, the impacts on any

individual factory trawler operation

would vary inversely with the size and

configuration of the vessel, hold

capacity, processing capability, markets

and market access, as well as the

specific composition and share of the

total catch of the four IR/IU species. The

burden would tend to fall most heavily

upon the smallest, least diversified

operations among the current fleet. In

addition, the groundfish vessel

moratorium, proposed license limitation

program, and U.S. Coast Guard load-line

requirements severely limit

reconstruction to increase vessel size

and/or processing capacity. These

restrictions are expected to further limit

the ability of smaller catcher/processors

to adapt to the proposed IR/IU program.

NMFS data indicate that in 1995, 44

at-sea processors participated in the

BSAI Pacific cod trawl fishery (4

motherships and 40 catcher/processors);

38 at-sea processors participated in the

BSAI rock sole fishery (2 motherships

and 36 catcher/processors); 48 at-sea

processors participated in the BSAI

yellowfin sole fishery (4 motherships

and 44 catcher/processors); 19 catcher/

processors participated in the flathead

sole fishery; and 23 at-sea processors

participated in the ‘‘other’’ flatfish

fishery (1 mothership and 22 catcher/

processors).

In selecting its preferred alternative

for Amendment 49, the Council

minimized the economic impact of the

IR/IU program on small entities in a

variety of ways. First, the Council

adopted 5-year delay in the effective

date for rock sole and yellowfin sole to

provide industry with sufficient time to

develop more selective fishing

techniques and/or markets for fish that

are currently being discarded. Second,

the Council rejected utilization

alternatives that would have limited

product forms or placed limits on

fishmeal production, in order to allow

industry more flexibility in complying

with the utilization requirements of the

IR/IU program. Finally, the Council

rejected monitoring alternatives that

would have imposed substantial costs in

the form of increased observer coverage

requirements or required a full time

compliance monitor aboard all vessels.

For reasons set forth in this preamble

above, alternatives that would have

further minimized economic impacts on

small entities were rejected.

This final rule has been determined to

be not significant for the purposes of

E.O. 12866.

The Administrator, Alaska Region,

NMFS determined that fishing activities

conducted under this rule would not

affect endangered and threatened

species listed or critical habitat

designated pursuant to the Endangered

Species Act in any manner not

considered in prior consultations on the

groundfish fisheries of the BSAI.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and

recordkeeping requirements.
63890 Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations

Dated: November 26, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 679 is amended

as follows:

PART 679—FISHERIES OF THE

EXCLUSIVE ECONOMIC ZONE OFF

ALASKA

1. The authority citation for 50 CFR

part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq, 1801 et

seq., and 3631 et seq.

2. In § 679.2, the definitions of ‘‘IR/

IU’’ and ‘‘IR/IU species’’ are added in

alphabetical order, paragraph (1) in the

definition of ‘‘Fishing trip’’ is revised

and the definition and heading of

‘‘Round weight or round-weight

equivalent’’ are revised to read as

follows:

§ 679.2 Definitions.

* * * * *

Fishing trip means: (1) With respect to

groundfish directed fishing closures or

the IR/IU program, an operator of a

vessel is engaged in a fishing trip from

the time the harvesting, receiving, or

processing of groundfish is begun or

resumed in an area until:

(i) The effective date of a notification

prohibiting directed fishing in the same

area under § 679.20 or § 679.21;

(ii) The offload or transfer of all fish

or fish product from that vessel;

(iii) The vessel enters or leaves an

area where a different directed fishing

prohibition applies; or

(iv) The end of a weekly reporting

period, whichever comes first.

* * * * *

IR/IU means the improved retention/

improved utilization program set out at

§ 679.27.

IR/IU species means any groundfish

species that is regulated by a retention

or utilization requirement set out at

§ 679.27.

* * * * *

Round-weight equivalent means the

weight of groundfish calculated by

dividing the weight of the primary

product made from that groundfish by

the PRR for that primary product as

listed in Table 3 of this part, or, if not

listed, the weight of groundfish

calculated by dividing the weight of a

primary product by the standard PRR as

determined using the best available

evidence on a case-by-case basis.

* * * * *

3. In § 679.5, paragraphs (c)(3)(ii)(G)

and (e)(2)(ii)(F) are added to read as

follows:

§ 679.5 Recordkeeping and reporting.

* * * * *

(c) * * *

(3) * * *

(ii) * * *

(G) The round-weight catch of pollock

and Pacific cod.

* * * * *

(e) * * *

(2) * * *

(ii) * * *

(F) The receipt round weight of

pollock and Pacific cod.

* * * * *

4. In § 679.20, paragraph (g)(5)(ii) is

revised to read as follows:

§ 679.20 General Limitations.

* * * * *

(g) * * *

(5) * * *

(ii) No discard of processed product.

Any pollock product that has been

processed may not be discarded at sea

unless such discarding is necessary to

meet other requirements of this part.

* * * * *

5. Section 679.27 is added to subpart

B to read as follows:

§ 679.27 Improved Retention/Improved

Utilization Program.

(a) Applicability. The owner or

operator of a vessel that is required to

obtain a Federal fisheries or processor

permit under § 679.4 must comply with

the IR/IU program set out in this section

while fishing for groundfish in the

BSAI, fishing for groundfish in waters of

the State of Alaska that are shoreward

of the BSAI, or when processing

groundfish harvested in the BSAI.

(b) IR/IU species. The following

species are defined as ‘‘IR/IU species’’

for the purposes of this section:

(1) Pollock.

(2) Pacific cod.

(3) Beginning January 1, 2003, rock

sole.

(4) Beginning January 1, 2003,

yellowfin sole.

(c) Minimum retention

requirements—(1) Definition of retain

on board. Notwithstanding the

definition at 50 CFR 600.10, for the

purpose of this section, to retain on

board means to be in possession of on

board a vessel.

(2) The following table displays

minimum retention requirements by

vessel category and directed fishing

status:

If you own or operate a And You must retain on board until lawful transfer

(i) Catcher vessel ........................ (A) Directed fishing for an IR/IU species is open ....... all fish of that species brought on board the vessel.

(B) Directed fishing for an IR/IU species is prohibited all fish of that species brought on board the vessel

up to the MRB amount for that species.

(C) Retention of an IR/IU species is prohibited .......... no fish of that species.

(ii) Catcher/ processor ................. (A) Directed fishing for an IR/IU species is open ....... a primary product from all fish of that species

brought on board the vessel.

(B) Directed fishing for an IR/IU species is prohibited a primary product from all fish of that species

brought on board the vessel up to the point that

the round-weight equivalent of primary products on

board equals the MRB amount for that species.

(C) Retention of an IR/IU species is prohibited .......... no fish or product of that species.

(iii) Mothership ............................. (A) Directed fishing for an IR/IU species is open ....... a primary product from all fish of that species

brought on board the vessel.

(B) Directed fishing for an IR/IU species is prohibited a primary product from all fish of that species

brought on board the vessel up to the point that

the round-weight equivalent of primary products on

board equals the MRB amount for that species.

(C) Retention of an IR/IU species is prohibited .......... no fish or product of that species.
Federal Register / Vol. 62, No. 232 / Wednesday, December 3, 1997 / Rules and Regulations 63891

(d) Bleeding codends and shaking

longline gear. Any action intended to

discard or release an IR/IU species prior

to being brought on board the vessel is

prohibited. This includes, but is not

limited to bleeding codends and shaking

or otherwise removing fish from

longline gear.

(e) At-sea discard of product. Any

product from an IR/IU species may not

be discarded at sea, unless such

discarding is necessary to meet other

requirements of this part.

(f) Discard of fish or product

transferred from other vessels. The

retention requirements of this section

apply to all IR/IU species brought on

board a vessel, whether harvested by

that vessel or transferred from another

vessel. At-sea discard of IR/IU species or

products that were transferred from

another vessel is prohibited.

(g) IR/IU species as bait. IR/IU species

may be used as bait provided that the

deployed bait is physically secured to

authorized fishing gear. Dumping of

unsecured IR/IU species as bait

(chumming) is prohibited.

(h) Previously caught fish. The

retention and utilization requirements

of this section do not apply to incidental

catch of dead or decomposing fish or

fish parts that were previously caught

and discarded at sea.

(i) Minimum utilization requirements.

If you own or operate a catcher/

processor or mothership, the minimum

utilization requirement for an IR/IU

species harvested in the BSAI is

determined by the directed fishing

status for that species according to the

following table:

If * * * then your total weight of retained or lawfully transferred products produced from your catch

or receipt of that IR/IU species during a fishing trip must * * *

(1) directed fishing for an IR/IU species is open, equal or exceed 15 percent of the round-weight catch or round-weight delivery of that species during the fishing trip.

(2) directed fishing for an IR/IU species is prohibited,equal or exceed 15 percent of the round-weight catch or round-weight delivery of that species during the fishing trip or 15 percent of the MRB amount for that species, whichever is

lower.

(3) retention of an IR/IU species is prohibited, equal zero.

6. In § 679.50, paragraphs (c)(1)(i),

(c)(1)(ii), (c)(3) introductory text, (d)(1),

and (d)(2) are revised to read as follows:

§ 679.50 Groundfish Observer Program

applicable through December 31, 1997.

* * * * *

(c) * * *

(1) * * *

(i) A mothership of any length that

processes 1,000 mt or more in roundweight equivalent of groundfish during

a calendar month is required to have an

observer aboard the vessel each day it

receives or processes groundfish during

that month.

(ii) A mothership of any length that

processes from 500 mt to 1,000 mt in

round-weight equivalent of groundfish

during a calendar month is required to

have an observer aboard the vessel at

least 30 percent of the days it receives

or processes groundfish during that

month.

* * * * *

(3) Assignment of vessels to fisheries.

At the end of any fishing trip, a vessel’s

retained catch of groundfish species or

species groups for which a TAC has

been specified under § 679.20, in roundweight equivalent, will determine to

which fishery category listed under

paragraph (c)(2) of this section the

vessel is assigned.

* * * * *

(d) * * *

(1) Processes 1,000 mt or more in

round-weight equivalent of groundfish

during a calendar month is required to

have an observer present at the facility

each day it receives or processes

groundfish during that month.

(2) Processes 500 mt to 1,000 mt in

round-weight equivalent of groundfish

during a calendar month is required to

have an observer present at the facility

at least 30 percent of the days it receives

or processes groundfish during that

month.

* * * * *

[FR Doc. 97–31711 Filed 12–2–97; 8:45 am]

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