[Federal Register Volume 63, Number 94 (Friday, May 15, 1998)]
[Proposed Rules]
[Pages 27035-27040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13049]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 98050115-8115-01; I.D. 032498A]
RIN 0648-AK86


Fisheries Off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Compensation for Collecting Resource 
Information

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed emergency rule; request for comments.

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SUMMARY: This action, authorized by the Magnuson-Stevens Act, proposes 
provisions by which a vessel owner or operator who has collected 
resource information according to a NMFS-approved protocol may be 
compensated with the opportunity to harvest fish in excess of current 
vessel limits and/or outside other restrictions. This action is 
intended to improve the types and amounts of scientific information 
available for use in stock assessments and management of the Pacific 
coast groundfish fishery. It is necessary to implement this action 
under the Magnuson-Stevens Act emergency rulemaking authority so that 
NMFS may contract with commercial fishing vessels to conduct resource 
surveys during the summer of 1998. The Pacific Fishery Management 
Council (Council) is considering an amendment to the Pacific Coast 
Groundfish Fishery Management Plan (PCGFMP) that would continue this 
compensation initiative beyond 1998.

DATES: Comments will be considered if received on or before June 5, 
1998.

ADDRESSES: Send comments to William Stelle, Jr., Administrator, 
Northwest Region, (Regional Administrator) NMFS, 7600 Sand Point Way 
NE., Seattle, WA 98115; or William T. Hogarth, Administrator, Southwest 
Region, (Regional Administrator) NMFS, 501 West Ocean Blvd., Suite 
4200, Long Beach, CA 90802-4213. Other information relevant to this 
proposed emergency rule is available for public review during business 
hours at the Office of the Administrator, Northwest Region, NMFS. 
Copies of the environmental assessment/regulatory impact review are 
also available from that address. Send comments regarding the burden 
estimate or any other aspect of the collection-of-information 
requirements in this proposed emergency rule, including suggestions for 
reducing the burden, to one of the NMFS addresses and to the Office on 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, DC 20503 (ATTN: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140.

SUPPLEMENTARY INFORMATION: NMFS is proposing an emergency rule and 
requesting comments on the proposal to allow owners or operators of 
vessels that collect resource information to be compensated with the 
opportunity to harvest fish in excess of current vessel limits and/or 
outside other restrictions [hereinafter ``compensated with fish'']. The 
Council recommended at its November 1997 meeting in Portland, OR, that 
NMFS proceed with this proposal immediately so that NMFS may so 
contract with commercial fishing vessels to conduct resource surveys 
during the summer of 1998.
    The fishing industry, environmental groups, and NMFS have actively 
explored various ways to expand and improve information used in 
management of the groundfish fishery and to involve the fishing 
industry in gathering that information. Part of this effort involves 
finding more creative means of compensating a fishing vessel's owner or 
operator with fish for participating in collecting resource 
information. On October 11, 1996, the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) was amended to 
authorize the Secretary of Commerce (Secretary) to use the private 
sector to provide vessels, equipment, and services necessary to survey 
fishery resources and to pay for these surveys through the sale of fish 
taken during the survey or, if the quality or amount of fish is not 
adequate, on a subsequent, commercial fishing trip (sec. 402(e)). 
Section 303(b)(11) of the Magnuson-Stevens Act enables the Secretary to 
``reserve a portion of the allowable biological catch of the fishery 
for use in scientific research.'' A vessel that is chartered by NMFS to 
conduct resource surveys becomes a ``scientific research vessel'' as 
defined at 50 CFR 600.10, and it may not conduct commercial fishing on 
the same trip during which a resource survey is conducted.

Background

    These provisions must be implemented as quickly as possible in 
order to include compensation with fish as a component of contracts 
NMFS will award to commercial fishing vessels to conduct resource 
surveys during the summer of 1998. Stock assessments for the Dover 
sole/thornyhead/trawl-caught sablefish (DTS) complex are controversial 
and have resulted in serious concern over the amount and accuracy of 
survey data. NMFS is committed to addressing these concerns. However, 
Federal fiscal constraints have precluded gathering the information 
needed. This is further compounded by the unavailability of the NOAA 
ship Miller Freeman, the principle vessel used for conducting resource 
surveys in this fishery, during much of 1998. Implementation of these 
provisions would enable NMFS to expand sampling in the annual slope 
survey which provides data for the stock assessments for these and 
other groundfish species. There is inadequate time to amend the PCGFMP 
to provide for using fish as compensation (and subtracting the 
compensation fish from acceptable biological catch (ABC)) before the 
slope survey is scheduled to begin on August 1, 1998. Therefore, NMFS 
is proposing this rule under the Secretary's emergency rulemaking 
authority of the Magnuson-Stevens Act so that these provisions may be 
implemented in time to support the 1998 slope survey. Concurrently, the 
Council is preparing an amendment to the PCGFMP for later 
implementation.

[[Page 27036]]

Compensation for a Vessel Conducting a Resource Survey

    The Magnuson-Stevens Act authorizes the Secretary, in consultation 
with the Council and the interested public, to structure competitive 
solicitations by which a vessel's owner or operator may compete for a 
contract with NMFS to conduct a resource survey. Resource surveys 
generally are conducted from chartered fishing vessels, chartered 
university vessels, and dedicated NOAA vessels. In a resource survey, 
all samples (fish) are collected according to a specified research plan 
or protocol. NMFS distinguishes survey activities by a scientific 
research vessel from commercial fishing activities according to a 
process of acknowledging scientific research described at 50 CFR 
600.745(a). NMFS frequently uses this mechanism to conduct surveys from 
chartered fishing vessels, and, in some cases, some of the sample has 
been retained by the vessel owner/operator for sale to reduce waste and 
to defray some of the costs of the charter. However, any additional 
harvest taken on a subsequent, commercial trip as payment for the 
resource survey would not be considered scientific research, and thus, 
was not authorized under the old provisions of the Magnuson-Stevens 
Act.
    The new provisions of the Magnuson-Stevens Act provide the 
authority to go beyond allowing the retention and sale of fish caught 
during the course of a resource survey by providing compensation 
through the opportunity to harvest fish in excess of current vessel 
limits and/or outside of other restrictions. This rule proposes to 
authorize such ``compensation fishing'' through the issuance of an 
exempted fishing permit (EFP) in the Pacific Coast groundfish fishery, 
which would enable the vessel to exceed trip limits (and/or to be 
exempt from other specified management restrictions) so that the 
compensation amount could be achieved. The compensation EFP would 
include terms and conditions that would limit the authorized 
activities. Conditions for disposition of bycatch or any excess catch 
and for reporting the value of the amount landed and other appropriate 
terms and conditions would be specified in the EFP. If the PCGFMP is 
amended, it is anticipated that compensation fishing would occur no 
later than the end of September of the year after the survey occurred. 
Compensation fishing must take place during the period specified in the 
EFP and must be conducted according to the terms and conditions of the 
EFP. The compensation EFP may also require the vessel owner or operator 
to keep separate records of compensation fishing conducted after the 
survey is completed and to submit them to NMFS within a specified 
period of time after the compensation fishing is completed. NMFS and 
the States of Washington, Oregon, and California may need to modify 
their catch reporting systems, if necessary, so that fish taken under 
the compensation EFP are counted separately from commercial landings.

Process

    The process incorporates selection of commercial vessels to be used 
to conduct the resource surveys, issuance of compensation EFPs to 
provide for compensation with fish, and adjustment of the ABC to 
account for the compensation fish used.

Competitive Offers

    NMFS may initiate a competitive solicitation (request for 
proposals, or RFP) to select vessels to conduct resource surveys that 
use fish as full or partial compensation. The RFP would be publicized 
in the Commerce Business Daily and would specify factors that NMFS 
would use in evaluating the proposals. Vessel owners would be expected 
to submit offers to conduct the resource survey for a combination of 
dollars and compensation fish.

Consultation

    At a Council meeting, NMFS would consult with the Council and 
receive public comment on upcoming resource surveys to be conducted 
with groundfish used as whole or partial compensation. For each 
proposal, NMFS would present (1) the maximum number of vessels expected 
or needed to conduct the survey, (2) an estimate of the species and 
amount of fish likely to be needed to compensate the vessel, (3) when 
the survey and the compensation fish would be taken, and (4) the year 
in which the compensation fish would be deducted from the ABC before 
determining the harvest guideline (HG) or quota. This is, in effect, 
equivalent to NMFS presenting a compensation EFP application to the 
Council for the compensation amounts. In general, compensation fish 
should be similar to surveyed species, but there may be reasons to 
provide compensation with healthier, more abundant, less restricted, or 
more easily targeted species. For example, NMFS may decline to pay a 
vessel with species that are, or are expected to be, overfished, that 
are subject to overfishing, or that are unavoidably caught with species 
that are overfished or subject to overfishing. NMFS may also want to 
take into account other factors such as expected discards and 
incidental catches of other species. If the Council does not approve 
the proposal to use fish as compensation to pay for a resource survey, 
NMFS would not use fish, other than fish taken during the scientific 
research, as compensation for that survey.

Awarding the Contract

    NMFS would negotiate and award the resource survey contracts
    in accordance with normal Federal procurement procedures. The
    contract would include any conditions and limits on compensation 
fishing, including a requirement to carry on board (1) a letter of 
acknowledgment of research signed by the Regional Administrator or 
designee, while conducting any resource survey, and (2) the 
compensation EFP while conducting compensation fishing and for a period 
of at least 15 days after the end of any applicable cumulative trip 
limit period in which compensation fishing occurred.

Retention of Samples

    All fishing on a resource survey trip would be required to be 
conducted according to scientific protocol and would be
    considered scientific research. However, some fish caught while 
conducting the survey could be retained and sold as compensation for 
the vessel's participation. Retention of samples for sale would be at 
the discretion of the chief scientist aboard, who would consult with 
the vessel captain. Collection of scientific information and samples 
would be the highest priority and might interfere with the vessel's 
ability to retain market-quality fish.

Issuance of the Compensation EFP

    Upon successful completion of the resource survey and determination 
of the amount and/or value of the survey sample that was retained for 
sale as payment for conducting the survey, NMFS would issue a 
compensation EFP to the owner or operator of the vessel if full 
compensation has not been achieved by the cash payment and retention of 
the survey sample. The compensation EFP would allow the vessel an 
opportunity to exceed the current commercial fishing limits by the 
total amount of compensation fish needed. The amount of compensation 
fish needed is the amount of fish specified in the contract less the 
amount and/or value of the survey sample retained for sale. The 
compensation EFP

[[Page 27037]]

also would exempt the vessel from other specified management measures.

Accounting for Compensation Fish

    Because the species and amounts of fish used as compensation would 
not be determined until the contract is awarded, it may not be possible 
to deduct the amount of compensation fish from the ABC or HG in the 
year that the fish are caught. Even if this could be done, it would 
cause great confusion with the many allocations and limits that were 
set before the compensation amounts were known. NMFS, therefore, 
proposes that the compensation fish be deducted from the ABC the year 
after they are caught. During the annual specification process (50 CFR 
660.321(b)), NMFS would advise the Council of the total amount of fish 
caught during the year as compensation for conducting a resource 
survey, which then would be deducted from the following year's ABCs 
before setting the HGs or quotas.

Compensation for a Commercial Vessel Collecting Resource 
Information--an EFP With a Compensation Clause

    NMFS also intends to conduct smaller-scale cooperative projects on 
vessels that are operating in the commercial fishery. This type of 
activity would not be considered scientific research under 50 CFR 
600.745(a) because it would not be conducted by a scientific research 
vessel, even though the vessels would be collecting resource 
information according to strict scientific standards approved by NMFS. 
For small-scale cooperative projects, NMFS could issue EFPs to fishing 
vessels collecting the resource information. The EFP would require the 
vessel to conduct specific activities and allow it to retain and sell a 
limited amount of fish above the amount it could take under its regular 
trip limit. After the resource information has been obtained, the EFP 
could authorize the vessel to sell the fish that were in the sample. 
This would be a standard EFP, issued under the procedures at 50 CFR 
600.745(b). Fish caught under this EFP would be counted against the 
ABCs and HGs or quotas in the year they are caught.
    In some circumstances, NMFS might want to allow the vessel to 
harvest slightly more fish than necessary for the particular project. 
(For the sablefish depth-specific sampling EFP expected in 1998, a 
vessel would be able to retain the sample plus a modest compensation 
amount, no larger than the size of the sample, above its normal trip 
limits. Samples in these cases generally would be expected to involve 
less than 500-1,500 lb (227-680 kg) of fish per vessel per month. The 
extra fish would compensate the vessel for the extra work involved in 
collecting the samples, may encourage vessels to participate in 
surveys, and would utilize more of the fish taken during the surveys 
that is surplus to sampling needs. NMFS could propose the amount of 
fish that would be used as compensation, or the EFP applicant could 
propose an amount in the EFP application. In these cases, when NMFS 
announces receipt of the EFP application and requests comments as 
required under 50 CFR 600.745(b), NMFS would also announce a window 
period during which vessels would have an opportunity to submit EFP 
applications. NMFS contemplates two ways of issuing such EFPs: First, 
the EFPs could be issued to individuals implementing a protocol 
approved by NMFS. NMFS would consider the qualified applicants, issue 
EFPs to all of them, select participation by lottery, issue EFPs to the 
first applicants, or use other impartial selection methods. Second, 
NMFS could issue the EFP to a NMFS element, or a state or other Federal 
research agency, and the research agency's proposal would include an 
impartial way of selecting fishing vessel participants that would 
receive individual EFPs under the umbrella EFP held by the research 
agency.
    The following analysis focuses on the use of compensation fishing 
in the context of chartering vessels to conduct resource surveys 
because the issues and impacts are of a much greater magnitude than 
those involved in an EFP with a compensation clause.

Biological Impacts

    The biological impacts of using fish as compensation would be
    expected to be neutral in the short term and positive in the long 
term. In the short term, the amount of fish used as compensation is 
intended to be within the ABC, and therefore, would be within current 
acceptable biological levels. In general, NMFS would be most likely to 
compensate the owner or operator of a vessel with identical or similar 
species to those taken in the resource survey. However, NMFS may 
decline to compensate a vessel with certain species, particularly 
stocks that are (or are expected to be) overfished, subject to 
overfishing, or have bycatch that are overfished (or are expected to 
be) or are subject to overfishing. In the long term, the additional 
information that is gathered because NMFS is able to compensate vessels 
with fish will provide more and better data for use in stock 
assessments, which should result in better management of the stock and 
less likelihood of overfishing.

Socio-economic Impacts

    The amount of the compensation fish (as a percentage of the ABC) 
would depend on the value of the compensation species and the cost of 
the survey. The cost of the survey is relatively fixed, regardless of 
the abundance and value of the species surveyed. The contract for an 
extensive survey (e.g., 2 vessels for 60 days at sea each), such as the 
current NMFS triennial trawl survey, would probably cost less than 
$450,000, under 0.5 percent of the landed value of all Pacific coast 
groundfish, 590 million, or approximately 1 percent of the $45 million 
value of the 1996 fisheries for the Dover sole, thornyheads, trawl-
caught sablefish complex (DTS). A smaller scale survey targeted on 
nearshore flatfish (e.g., Petrale sole, English sole, rex sole) would 
cost close to $175,000, 2.5 percent of the value of this $7 million 
flatfish fishery. However, not all components of the groundfish fishery 
are useful as compensation fish. Only those groundfish species for 
which there is a constraining trip limit, season, or other management 
restriction would be desirable targets as compensation because a vessel 
is not limited in its catch of other groundfish species. Thus, the 
above comparison that is most relevant to this discussion is the one 
for the DTS complex. An unfortunate aspect is that most depressed 
stocks (such as Pacific ocean perch) cannot afford an allocation of 
compensation fish, while most healthy stocks (like English sole) have 
no trip limits or allocations that would be desirable compensation. 
These considerations do not diminish the utility of using fish as 
compensation, but they do limit the range of species that could be 
considered as payment.
    Vessels engaged in extended resource surveys may not have an 
adequate opportunity to take their monthly commercial trip limit. The 
contract and EFP may address the possibility of allowing the take of a 
monthly trip limit outside the normal period as one of the activities 
that might be provided as compensation for conducting the survey.
    The amount of compensation fish awarded to a survey vessel would be 
deducted from the subsequent year's ABC. If compensation fish comprise 
a large proportion of an HG or quota, then potentially trip or bag 
limits for that species could be lowered, or other constraints on the 
fishery could be necessary. However, the amounts used as compensation 
are expected to be less

[[Page 27038]]

than 5 percent of an ABC, well within the range of uncertainty 
associated with ABCs, inseason catch monitoring, and trip limit 
derivations. Therefore, it is not likely that awarding fish for 
compensation would result in lower trip limits or additional or earlier 
restrictions, although potentially this could occur.
    Because the amount of fish used for compensation would be 
subtracted ``off the top'' of the ABC, the loss of compensation fish 
would be shared among all sectors and vessels (commercial, 
recreational, and tribal) in the fishery.
    Use of compensation fish would reduce the Federal outlay of 
capital, although it would increase the Federal workload by adding 
additional EFP procedures and potentially complicating the 
determination of acceptable charter offers for resource surveys.
    Use of fish as compensation for conducting resource surveys should 
increase the participation and interest by members of
    the fishing industry, many of whom have been skeptical of NMFS's 
data and survey procedures. The resulting cooperation between industry 
and government would provide scientists with valuable guidance from 
veteran fishers and would provide industry with first-hand insight into 
scientific sampling procedures.
    A survey vessel would receive an extra financial benefit under this 
proposed process; however, the recipient and level of the benefit would 
be determined through a competitive process.
    Using fish as compensation would enable more data to be gathered 
than would otherwise be possible. This should lead to better stock 
assessments and a better long-term prognosis for a sustainable fishery 
and thus contribute to stability in the fishing industry and in the 
resources upon which the industry depends.

Classification

    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities as follows:

    NMFS has established standards for determining whether an action 
will have a significant economic impact on a substantial number of 
small entities. NMFS has determined that, in general, a substantial 
number of small entities would be 20 percent of those small entities 
affected by the rule. Economic impacts on small entities are 
considered to be ``significant'' if the proposed action would result 
in any of the following: (a) reduction in annual gross revenues by 
more than 5 percent; (b) increase in total costs of production by 
more than 5 percent as a result of an increase in compliance costs; 
(c) compliance costs as a percent of sales for small entities are at 
least 10 percent higher than compliance costs as a percent of sales 
for large entities; (d) capital cost of compliance represent a 
significant portion of capital available to small entities, 
considering internal cash flow and external financing capabilities; 
or, (e) as a rule of thumb, 2 percent of small business entities 
being forced to cease business operations. The proposed rule would 
result in no additional compliance costs, and therefore items (b), 
(c), and (d) are not at issue. Item (e) is not relevant as this 
action would not force any business to cease operations. Only (a) 
appears potentially relevant to this issue.
    This proposed rule could affect a maximum of 2,270 vessels. Of 
these, approximately 2,260 (almost 100 percent) are considered small 
entities. The rule is expected to have several different types of 
impacts. For vessels that obtain contracts to conduct research in 
exchange for fish, this rule would provide increased opportunity for 
profit. This rule is also expected to lead to the availability of 
increased scientific data on the status of the fishery. The 
availability of this data will enhance the ability of the agency to 
manage the fishery and is likely to lead to long-term benefits for 
all participants.
    There is also the small possibility that this rule could result 
in negative economic impacts on some fishery participants. The fish 
that are awarded as compensation would be deducted from next year's 
acceptable biological catch. The amounts likely to be diverted for 
compensation would be so small as to be within the range of accuracy 
expected for inseason monitoring of harvest guidelines and quotas, 
and most likely would not change the size of trip limits or their 
date of achievement. However, there is a remote possibility that 
some trip limits would be lowered, or lowered earlier, as a result 
of the small compensation allocation for survey vessels. If this 
happens, those vessels that routinely achieve their Dover sole, 
thornyhead, and trawl-caught sablefish (DTS) limits could experience 
some degree of economic loss. NMFS estimates that approximately 208 
limited entry vessels achieved these limits during at least one 
trip-limit period between July 1996-June 1997. Thus, 9 percent (208 
vessels/2,260 vessels of the affected small entities) could 
hypothetically experience some economic loss as a result of this 
rule. NMFS estimates that the total cost of the 1998 compensation 
fish would be $135,000. If this amount is divided between the 
limited entry and open access fleets in proportion to their share of 
the fishery, then the cost to the limited entry fleet would be 
approximately $128,000 and the cost to the open access fleet would 
be approximately $7,000.
    If the entire $128,000 share of the survey cost for the limited 
entry fleet were supported by the 208 vessels that achieved a 
cumulative trip limit of one DTS species during one trip-limit 
period, the average cost to each of these 208 vessels would be $615. 
The average annual fishing revenue for limited entry vessels in 1996 
was $204,000. Thus, the average cost per vessel of spreading the 
$128,000 cost among 208 vessels would be 0.3 percent ($615 divided 
by $204,000). In addition, NMFS notes that the smallest 12-month 
revenue for any of these 208 vessels was $15,000, 5 percent of which 
is $750, which is higher than the $615 average cost of the 
compensation fish for these 208 vessels. As the vessel revenue 
increases, which it does for the remaining 207 vessels, the relative 
impact of the cost of compensation fish becomes smaller, and remains 
less than 5 percent. From a slightly different perspective, if the 
cost associated with using fish as compensation were $128,000 and 
were distributed amongst the limited entry vessels in proportion to 
the number of periods in which they attained a limit (during July 
1996-June 1997), then the largest reduction in annual revenue for 
any vessel would be 0.5 percent. NMFS does not anticipate lowering 
trip limits in the open access fishery, because the maximum amount 
of fish that this rule could possibly reduce the open access fishery 
by ($7,000 worth) is so small.

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
OMB under OMB control number 0648-0203 for Federal fishing permits. 
Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB control number. The public reporting burden for applications 
for exempted fishery permits is estimated at 1 hour per response; 
burden for reporting by exempted fishing permittees is estimated at 30 
minutes per response. These estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and revising the collection 
of information.
    Public comment is invited regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the function of the agency, including whether the information has 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including through the use of automated collection techniques or other 
forms of information

[[Page 27039]]

technology. Send comments regarding these burden estimates or any other 
aspect of the data requirements, including suggestions for reducing the 
burden, to NMFS (see ADDRESSES) and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 (ATTN: NOAA Desk Officer).

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: May 11, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    l. The authority citation for part 660 continues to read as 
follows:

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

    2. In Sec. 660.306, paragraph (d) is revised to read as follows:


Sec. 660.306  Prohibitions.

* * * * *
    (d) Fish for groundfish in violation of any terms or conditions 
attached to an EFP under 50 CFR 600.745 or 660.350.
* * * * *
    3. In subpart G, a new Sec. 660.350 is added to read as follows:


Sec. 660.350  Compensation with fish for collecting resource 
information--exempted fishing permits off Washington, Oregon, and 
California.

    In addition to the reasons stated in Sec. 600.745(b)(1) of this 
chapter, an EFP may be issued under this subpart G for the purpose of 
compensating the owner or operator of a vessel for collecting resource 
information according to a protocol approved by NMFS. The EFP would 
allow a vessel to retain fish as compensation in excess of trip limits, 
or to be exempt from other specified management measures for the 
Pacific coast groundfish fishery.
    (a) Compensation EFP. A compensation EFP may be issued to the owner 
or operator of a vessel that conducted a resource survey according to a 
contract with NMFS. A vessel's total compensation from all sources (in 
terms of dollars or tons of fish and including fish from survey samples 
or compensation fish) will be determined through normal Federal 
procurement procedures. The compensation EFP will specify the maximum 
amount or value of fish that may be retained by the vessel after the 
resource survey is completed.
    (1) Competitive offers. NMFS may initiate a competitive 
solicitation (request for proposals or RFP) to select vessels to 
conduct resource surveys that use fish as full or partial compensation, 
following normal Federal procurement procedures.
     (2) Consultation. At a Council meeting, NMFS will consult with the 
Council and receive public comment on upcoming resource surveys to be 
conducted if groundfish could be used as whole or partial compensation. 
For each proposal, NMFS will present:
    (i) The maximum number of vessels expected or needed to conduct the 
survey,
    (ii) An estimate of the species and amount of fish likely to be 
needed as compensation,
    (iii) When the survey and compensation fish would be taken, and
    (iv) The year in which the compensation fish would be deducted from 
the ABC before determining the harvest guideline or quota. Generally, 
compensation fish would be similar to surveyed species, but there may 
be reasons to provide payment with healthier, more abundant, less 
restricted stocks, or more easily targeted species. For example, NMFS 
may decline to pay a vessel with species that are, or are expected to 
be, overfished, or that are subject to overfishing, or that are 
unavoidably caught with species that are overfished or subject to 
overfishing. NMFS also may also consider levels of discards, bycatch, 
and other factors. If the Council does not approve providing whole or 
partial compensation for the conduct of a survey, NMFS will not use 
fish, other than fish taken during the scientific research, as 
compensation for that survey.
    (3) Issuance of the compensation EFP. Upon successful completion of 
the survey, NMFS will issue a ``compensation EFP'' to the vessel if it 
has not been fully compensated. The procedures in Sec. 600.745(b)(1) 
through (b)(4) of this chapter do not apply to a compensation EFP 
issued under this subpart for the Pacific coast groundfish fishery (50 
CFR Part 660, subpart G).
    (4) Terms and conditions of the compensation EFP. Conditions for 
disposition of bycatch or any excess catch, for reporting the value of 
the amount landed, and other appropriate terms and conditions will be 
specified in the EFP. Compensation fishing must occur during the period 
specified in the EFP, but no later than the end of September of the 
fishing year following the survey, and must be conducted according to 
the terms and conditions of the EFP.
    (5) Reporting the compensation catch. The compensation EFP may 
require the vessel owner or operator to keep separate records of 
compensation fishing and to submit them to NMFS within a specified 
period of time after the compensation fishing is completed.
    (6) Accounting for the compensation fish. As part of the annual 
specification process (50 CFR 660.321), NMFS will advise the Council of 
the amount of fish retained under a compensation EFP, which then will 
be deducted from the next year's ABCs before setting the HGs or quotas.
    (b) EFP with a compensation clause. An EFP may be issued to a 
commercial fishing vessel for the purpose of collecting resource 
information in excess of current management limits (50 CFR 600.745(b)). 
The EFP may include a compensation clause that allows the participating 
vessel to be compensated with fish for its efforts to collect resource 
information according to NMFS' approved protocol. If compensation with 
fish is requested in an EFP application, or proposed by NMFS, the 
following provisions apply in addition to those at 50 CFR 600.745(b).
    (1) Application. In addition to the requirements in Sec. 600.745(b) 
of this chapter, application for an EFP with a compensation clause must 
clearly state whether a vessel's participation is contingent upon 
compensation with groundfish and, if so, the minimum amount (in metric 
tons, round weight) and the species. As with other EFPs issued under 
Sec. 600.745 of this chapter, the application may be submitted by any 
individual, including a state fishery management agency or other 
research institution.
    (2) Denial. In addition to the reasons stated in 
Sec. 600.745(b)(3)(iii) of this chapter, the application will be denied 
if the requested compensation fishery, species, or amount is 
unacceptable for reasons such as, but not limited to, the following: 
NMFS concludes the value of the resource information is not 
commensurate with the value of the compensation fish; the proposed 
compensation involves species that are (or are expected to be) 
overfished or subject to overfishing, fishing in times or areas where 
fishing is otherwise prohibited or severely restricted, or fishing for 
species that would involve unavoidable bycatch of species that are 
overfished or subject to overfishing; or NMFS concludes the information 
can

[[Page 27040]]

reasonably be obtained at less cost to the resource.
    (3) Window period for other applications. If the RA or designee 
agrees that compensation should be considered, then a window period 
will be announced in the Federal Register during which additional 
participants will have an opportunity to apply. This notification would 
be made at the same time as announcement of receipt of the application 
and request for comments required under Sec. 660.745(b). If there are 
more qualified applicants than needed for a particular time and area, 
NMFS will choose among the qualified vessels, either randomly, in order 
of receipt of the completed application, or by other impartial 
selection methods. If the permit applicant is a state, university, or 
Federal entity other than NMFS and NMFS approves the selection method, 
the permit applicant may chose among the qualified vessels, either 
randomly, in order of receipt of the vessel application, or by other 
impartial selection methods.
    (4) Terms and conditions. The EFP will specify the amounts that may 
be taken as scientific samples and as compensation, the time period 
during which the compensation fishing must occur, management measures 
that are waived while fishing under the EFP, and other terms and 
conditions appropriate to the fishery and the collection of resource 
information. NMFS may require compensation fishing to occur on the same 
trip that the resource information is collected.
    (5) Accounting for the catch. Samples taken under this EFP, as well 
as any compensation fish, are counted toward the current year's catch 
or landings.
[FR Doc. 98-13049 Filed 5-14-98; 8:45 am]
BILLING CODE 3510-22-F