[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66829-66831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33302]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 970801188-7288-02; I.D. 070797C]
RIN 0648-AJ45
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
of the Bering Sea and Aleutian Islands Area; Prohibited Species Catch
Limit for Chionoecetes opilio
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues regulations implementing Amendment 40 to the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area (FMP) as recommended by the North Pacific
Fishery Management Council (Council). The implementing regulations
establish a prohibited species catch (PSC) limit for Chionoecetes
opilio, a crab species, in a new C. opilio Bycatch Limitation Zone
(COBLZ) of the Bering Sea. Upon attainment of a C. opilio bycatch
allowance apportioned to a particular trawl fishery category, the COBLZ
will be closed to directed fishing for species in that trawl fishery
category. This measure is necessary to further protect the stocks of
Bering Sea C. opilio by limiting the incidental take of this species
thereby mitigating the potential adverse effects of trawl fishing
activities on the C. opilio stock. This measure is intended to
accomplish the objectives of the FMP with respect to the management of
the Bering Sea and Aleutian Islands management area (BSAI) groundfish
fishery.
DATES: Effective January 21, 1998.
ADDRESSES: Comments should be sent to Chief, Sustainable Fisheries
Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn:
Lori J. Gravel, or delivered to the Federal Building, 709 West 9th
Street, Juneau, AK. Copies of the Environmental Assessment/Regulatory
Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA)
prepared for the amendment may be obtained from the North Pacific
Fishery Management Council, 605 West 4th Avenue, Suite 306, Anchorage,
AK 99501-2252; telephone: 907-271-2809.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The U.S. groundfish fisheries of the BSAI in the exclusive economic
zone 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) and is implemented by regulations for the
fisheries off Alaska at 50 CFR part 679. General regulations that also
pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
Anticipated recruitment of male C. opilio crab is at a relatively
low level, based on recent NMFS bottom trawl survey data. The 1996 C.
opilio season produced only 64.6 million lb (29,302 metric tons) for
the 235 vessels participating. This is the lowest catch since 1984.
Survey data from 1996 indicate that adult males are abundant, but
females and pre-recruits (males that have not reached legal commercial
size) are becoming less abundant. This was corroborated by the 1997
survey which showed a 78 percent increase in the large male (greater
than 102 mm, legal size) population, 45 percent decrease in the pre-
recruit (less than 102 mm) male population, and a 22 percent decrease
in the small (less than 50 mm) female population. Although the increase
in the large male population should lead to a stable abundance of large
males, the lack of very small crabs may indicate declining abundance
over a longer term.
The groundfish fisheries incidentally catch crab. An objective of
the FMP is to minimize the impact of groundfish fisheries on crab and
other prohibited species, while providing for rational and optimal use
of the region's fishery resources. All gear types used to catch
groundfish have some potential to incidentally catch crab, but the
large majority of crab bycatch occurs in trawl fisheries for flatfish.
In view of this FMP objective, the Council initiated an assessment
in January 1995 of potential measures to further limit crab bycatch in
the groundfish fisheries. This Council initiative was also responsive
to increasing concern about the potential impact of crab bycatch on
declining stocks and future harvests in the commercial crab fisheries.
Proposed alternatives included the establishment of bycatch limits for
C. opilio.
In June 1996, the Council formed an industry work group to review
proposed PSC limits for C. opilio. This work group consisted of three
crab fishery representatives, three trawl fishery representatives, and
one shoreside processing representative. The group met November 6-7,
1996, and came to a consensus on a PSC limit for C. opilio, based on
the best available scientific information on the abundance and
distribution of the specified crab species and its rate of bycatch in
fisheries for certain species of groundfish. The affected industry
groups proposed the following: (1) Establishment of a COBLZ, (2) an
annual specification of a PSC limit for C. opilio in the COBLZ based on
the total abundance of C. opilio as indicated by the most recent NMFS
bottom trawl survey, and (3) establishment of upper and lower bounds
within which the annual C. opilio PSC limit must be specified.
At its December 1996 meeting, the Council endorsed the industry
work group agreement and adopted it as Amendment 40 to the FMP. The
Council recommended that NMFS initiate a rulemaking to implement the
amendment. A notice of availability of Amendment 40 was published in
the Federal Register on July 15, 1997 (62 FR 37860), and invited
comment on the amendment through September 15, 1997. One letter
containing 3 comments was received during the comment period on the
amendment. A proposed rule to implement Amendment 40 was published in
the Federal Register on August 13, 1997 (62 FR 43307). Comments on the
proposed rule were invited through September 29, 1997. No additional
comments were received by the end of the comment period on the proposed
rule. The comments supported approval of Amendment 40 and the proposed
rule with various suggestions for modifications. Comments on the
proposed rule are summarized and responded to in the Response to
Comments section.
The proposed rule included measures for a C. opilio PSC limit in
1997. However, after publication of the proposed rule, it became
apparent that the proposed 1997 C. opilio PSC limit would not be
approached. Consequently, those proposed measures have been removed
from this final rule. NMFS anticipates that the Council will specify a
1998 PSC limit (4,654,000 C. opilio crab) and the fishery apportionment
thereof as part of the 1998 groundfish specification process. C. opilio
bycatch accrued from January 1, 1998, until the effective date of the
final rule would apply to all fisheries that take C. opilio in 1998.
[[Page 66830]]
NMFS clarifies an erroneous statement made in the preamble to the
proposed rule (62 FR 43307 August 13, 1997) which indicated that upon
attainment of a C. opilio bycatch allowance apportioned to a particular
trawl fishery category, the COBLZ would be closed to directed fishing
for species in that trawl fishery category, except for pollock with
nonpelagic trawl gear, according to Sec. 679.21(e)(7)(i). That
statement is corrected to indicate that the COBLZ would be closed to
directed fishing for species in that trawl fishery category, except for
pollock with pelagic trawl gear. As indicated by the existing exception
at Sec. 679.21(e)(7)(i), the bycatch concern is for the nonpelagic
trawl gear, not for the pelagic trawl gear. This erroneous statement
was not repeated in the text of the proposed regulations published at
62 FR 43307. Therefore, no change from the proposed rule to the final
rule is necessary.
NMFS has determined that this action is necessary for the
conservation and management of the groundfish fishery of the BSAI and
for the resource allocation issue between the groundfish and crab
industries. NMFS approved Amendment 40 on October 15, 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 (62 FR
43307) and in the EA/RIR/FRFA.
Response to Comments
Comment 1. NMFS should modify the stated rationale for Amendment
40 from one that focuses on a conservation problem to one that
acknowledges the health of the C. opilio resource and the allocation
issue between groundfish and crab industries. The trawl industry, in
general, believes that the establishment of a C. opilio PSC limit is
simply a distributive decision. The rationale for Amendment 40 should
focus on the allocation aspect of the industry agreement and should
plainly state that the groundfish and crab industries have agreed to
limit the trawl industry's take of C. opilio in the COBLZ to 0.1133
percent of abundance as determined by the annual NMFS bottom trawl
survey.
Response. NMFS acknowledges that Amendment 40 addresses an
allocation issue between groundfish and crab industries. However, NMFS
also recognizes that this measure provides protection to stocks of
Bering Sea C. opilio by limiting the incidental take of this species,
thereby mitigating the potentially adverse effects of trawl fishing
activities on the C. opilio stock. Historically, bycatch management
measures instituted for groundfish fisheries in the eastern Bering Sea
have focused on reducing the incidental capture and injury of species
traditionally harvested by other fisheries. The total abundance
estimates for C. opilio, as determined by the NMFS annual trawl survey,
have declined steadily since 1993. Although certain segments of the
population may have increased (large male segment by 78 percent in
1997), others have declined (pre-recruit male segment by 45 percent and
small female segment by 22 percent in 1997). Therefore, a conservative
management approach is warranted.
Comment 2. If NMFS chooses to retain the current emphasis on
addressing a ``conservation problem,'' NMFS should concentrate on the
significant level of C. opilio discards in the directed C. opilio
fishery. Between the years 1992 and 1994, according to Alaska
Department of Fish and Game (ADF&G) data, an average of 59,267,279 C.
opilio crab were discarded annually in the directed crab fishery.
Assuming a mortality rate of only 20 percent (which is reasonable for a
crab fishery that takes place in the winter months), the impact of
approximately 12 million dead crab from the directed fishery is far
greater than the impact of the C. opilio PSC limit of 0.1133 percent of
abundance (4.6 million crab for 1998), even assuming the entire PSC
limit is taken and all trawl-caught C. opilio are killed, which is
improbable.
Response. NMFS is aware that C. opilio discards in the directed C.
opilio fishery contribute to the overall crab bycatch issue. NMFS also
agrees that all sources of mortality are of concern for a resource,
such as C. opilio, that experiences a reduction in biomass. NMFS and
ADF&G are engaged in research initiatives on crab handling mortality
and bycatch reduction in the directed crab fisheries. Various crab
bycatch proposals for FMP amendments and regulatory amendments were
submitted by industry groups to the Council in 1997.
Comment 3. Due to the current NMFS catch monitoring programs it may
be difficult initially to monitor the C. opilio PSC limit in the COBLZ.
We accept this unfortunate situation for 1998 alone. Trawl industry
support for the C. opilio bycatch restrictions was based on tracking
the PSC limit against the area specified as the COBLZ. The accord
between the industries was landmark and involved a great deal of
analysis and negotiation on the part of industry. Implementation of
Amendment 40 after 1998 should proceed without modification of the PSC
limit or the COBLZ area.
Response. Implementation of Amendment 40 in 1998 will proceed
without modification of the PSC limit or the area monitored, the COBLZ.
The proposed regulations at Sec. 679.21(e)(1)(iii) indicated that
through December 31, 1997, the areas to account for C. opilio bycatch
PSC limit would be accounted for from Federal reporting areas 513, 514,
521, 523, and 524 until changes to recordkeeping and reporting
requirements could be made. Due to unanticipated delays in implementing
Amendment 40, however, the C. opilio PSC limit and the COBLZ will not
be effective until January 1, 1998. At that time, the C. opilio PSC
limit will be monitored in the COBLZ. This will be possible pending
changes to the 1998 recordkeeping and reporting requirements that will
require fishermen and processors to indicate by citing logbooks and
production reports respectively, when fishing occurs in the COBLZ.
Changes From the Proposed Rule
For reasons stated above, the regulatory provisions for 1997
implementation of the C. opilio PSC limit and the establishment of the
COBLZ in 1997 have been deleted.
Classification
The Administrator, Alaska Region, NMFS, determined that Amendment
40 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 final rule has been determined to be not significant for
purposes of E.O. 12866.
The Council prepared an FRFA as part of the RIR, which describes
the impact this rule would have on small entities. Many trawl vessels
and processors participating in the BSAI groundfish fishery could be
affected by this action. Catcher vessels harvesting groundfish in the
BSAI are considered small entities and would be affected by the new C.
opilio PSC limits. In 1995, 122 trawl catcher vessels harvested BSAI
groundfish. Based on the best available information, NMFS anticipates
that this rule could result in a greater than 5-percent reduction in
gross revenues for any one of these vessels. Therefore, this rule could
have a significant economic impact on a substantial number of small
entities.
A number of alternatives to the rule which would have lessened the
economic impact on small entities were considered and rejected. The no
action alternative, that is not establishing a PSC limit for C. opilio,
was rejected
[[Page 66831]]
because it would not accomplish the Council's objective of limiting
bycatch, especially if the BSAI allocations of flatfish are increased
in the future. The alternative of establishing a fixed limit of C.
opilio that, upon attainment, would close affected trawl fisheries in
Zone 2 (Federal reporting areas 508, 509, 512, and 516) unless the
optimum limit was specified prior to the fishing season, was rejected
because if the optimum limit was not correctly specified in advance,
certain trawl fisheries (e.g., yellowfin sole fishery) could be
adversely impacted. Another alternative was to set a fixed limit for
Zone 2 of C. opilio within a specific percentage of the NMFS bottom
trawl index. This alternative was rejected because Zone 2 does not
correspond to crab distribution as does the preferred COBLZ, which was
proposed specifically for C. opilio bycatch management. Alternatives
that addressed modifying reporting requirements for small entities or
the use of performance rather than design standards for small entities
were not considered. Such alternatives were not relevant to this
action. Exemptions for small entities from this action would not be
appropriate in that the objective of the action to further limit C.
opilo bycatch in the BSAI groundfish fisheries would not be adequately
addressed. No steps to minimize the potential significant economic
impacts on small entities have been taken. No comments on the IRFA were
received during the public comment period for the proposed rule. A copy
of the EA/RIR/FR is available from the Council (see ADDRESSES).
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: December 16, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Services.
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 Sec. 679.2, the definitions of ``C. Opilio Bycatch Limitation
Zone'' and ``U.S.-Russian Boundary'' are added in alphabetical order to
read as follows:
Sec. 679.2 Definitions
* * * * *
C. Opilio Bycatch Limitation Zone (COBLZ) (see
Sec. 679.21(e)(7)(iv)(B)).
* * * * *
U.S.-Russian Boundary means the seaward boundary of Russian waters
as defined in Figure 1 of this part.
* * * * *
3. In Sec. 679.21, paragraphs (e)(1)(iii) through (vi) are
redesignated as paragraphs (e)(1)(iv) through (vii), respectively, a
new paragraph (e)(1)(iii) is added, paragraphs (e)(3)(ii)(A) and (C)
and (e)(6) are revised, paragraphs (e)(7)(iv) through (vii) are
redesignated as paragraphs (e)(7)(v) through (viii), and a new
paragraph (e)(7)(iv) is added to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(e) * * *
(1) * * *
(iii) C. opilio. The PSC limit of C. opilio caught by trawl vessels
while engaged in directed fishing for groundfish in the COBLZ will be
specified annually by NMFS under paragraph (e)(6) of this section,
based on total abundance of C. opilio as indicated by the NMFS annual
bottom trawl survey using the following criteria:
(A) PSC Limit. The PSC limit will be 0.1133 percent of the total
abundance, unless;
(B) Minimum PSC Limit. If 0.1133 percent multiplied by the total
abundance is less than 4.5 million, then the minimum PSC limit will be
4.5 million animals; or
(C) Maximum PSC Limit. If 0.1133 percent multiplied by the total
abundance is greater than 13 million, then the maximum PSC limit will
be 13 million animals.
* * * * *
(3) * * *
(ii) Red king crab, C. bairdi, C. opilio, and halibut--(A) General.
For vessels engaged in directed fishing for groundfish in the GOA or
BSAI, the PSC limits for red king crab, C. bairdi, C. opilio, and
halibut will be apportioned to the trawl fishery categories defined in
paragraphs (e)(3)(iv)(B) through (F) of this section.
* * * * *
(C) Incidental catch in midwater pollock fishery. Any amount of red
king crab, C. bairdi, C. opilio, or halibut that is incidentally taken
in the midwater pollock fishery as defined in paragraph (e)(3)(iv)(A)
of this section will be counted against the bycatch allowances
specified for the pollock/Atka mackerel/``other species'' category
defined in paragraph (e)(3)(iv)(F) of this section.
* * * * *
(6) Notification--(i) General. NMFS will publish annually in the
Federal Register the annual red king crab PSC limit and, if applicable,
the amount of this PSC limit specified for the RKCSS, the annual C.
bairdi PSC limit, the annual C. opilio PSC limit, the proposed and
final bycatch allowances, seasonal apportionments thereof, and the
manner in which seasonal apportionments of nontrawl fishery bycatch
allowances will be managed, as required under this paragraph (e).
(ii) Public comment. Public comment will be accepted by NMFS on the
proposed annual red king crab PSC limit and, if applicable, the amount
of this PSC limit specified for the RKCSS, the annual C. bairdi PSC
limit, the annual C. opilio PSC limit, the proposed and final bycatch
allowances, seasonal apportionments thereof, and the manner in which
seasonal apportionments of nontrawl fishery bycatch allowances will be
managed, for a period of 30 days from the date of publication in the
Federal Register.
(7) * * *
(iv) C. opilio, C. Opilio Bycatch Limitation Zone (COBLZ),
closure--(A) C. opilio Bycatch Allowance. Except as provided in
paragraph (e)(7)(i) of this section, if, during the fishing year, the
Regional Administrator determines that U.S. fishing vessels
participating in any of the fishery categories listed in paragraphs
(e)(3)(iv)(B) through (F) of this section will catch the COBLZ bycatch
allowance, or seasonal apportionment thereof, of C. opilio specified
for that fishery category under paragraph (e)(3) of this section, NMFS
will publish in the Federal Register the closure of the COBLZ, as
defined in paragraph (e)(7)(iv)(B) of this section, to directed fishing
for each species and/or species group in that fishery category for the
remainder of the year or for the remainder of the season.
(B) C. Opilio Bycatch Limitation Zone. The C. Opilio Bycatch
Limitation Zone is an area defined as that portion of the Bering Sea
Subarea north of 56 deg.30' N. lat. that is west of a line connecting
the following coordinates in the order listed:
56 deg.30' N. lat., 165 deg.00' W. long.
58 deg.00' N. lat., 165 deg.00' W. long.
59 deg.30' N. lat., 170 deg.00' W. long.
and north along 170 deg.00' W. long. to its intersection with the
U.S.-Russian Boundary.
* * * * *
[FR Doc. 97-33302 Filed 12-19-97; 8:45 am]
BILLING CODE 3510-22-F