[Federal Register Volume 63, Number 81 (Tuesday, April 28, 1998)]
[Proposed Rules]
[Pages 23261-23263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11242]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980414096-8096-01; I.D. 032698A]
RIN 0648-AJ99


Fisheries of the Exclusive Economic Zone Off Alaska; Gear 
Allocation of Shortraker and Rougheye Rockfish in the Aleutian Islands 
Subarea

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 53 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP). Amendment 53 would allocate shortraker 
rockfish and rougheye rockfish (SR/RE) in the Aleutian Islands subarea 
(AI) between vessels using trawl gear and vessels using non-trawl gear. 
This action is necessary to prevent the incidental catch of SR/RE in 
trawl fisheries from closing non-trawl fisheries and is intended to 
further the objectives of the FMP.

DATES: Comments must be received at the following address by June 12, 
1998.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to 
the Federal Building, 709 West 9th Street, Juneau, AK. Copies of the 
Environmental Assessment/Regulatory Impact Review prepared for this 
action may be obtained from the same address or by calling the Alaska 
Region, NMFS, at 907-586-7228.

FOR FURTHER INFORMATION CONTACT: Alan Kinsolving, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Management Background and Need for Action

    Fishing for groundfish by U.S. vessels in the exclusive economic 
zone of the Bering Sea and Aleutian Islands management area (BSAI) is 
managed by NMFS according to the FMP. The FMP

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was prepared by the North Pacific Fishery Management Council (Council) 
under authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Fishing by U.S. vessels is 
governed by regulations implementing the FMP at 50 CFR parts 600 and 
679.
    The Council has submitted Amendment 53 for Secretarial review and a 
Notice of Availability of the FMP amendment was published at 63 FR 
16223 (April 2, 1998) with comments on the FMP amendment invited 
through June 1, 1998. All written comments received by June 1, 1998, 
whether specifically directed to the FMP amendment, the proposed rule, 
or both, will be considered in the approval/disapproval decision on the 
FMP amendment.
    SR/RE are commercially valuable species. However, amounts available 
to the commercial fisheries are limited by a relatively small total 
allowable catch (TAC) amount that is fully needed to support incidental 
catch or bycatch needs in other groundfish fisheries. As a result, the 
directed fishery for SR/RE typically is closed at the beginning of the 
fishing year. Bycatch of SR/RE is highest in the Pacific ocean perch 
(POP) and Atka mackerel trawl fisheries, but SR/RE also are taken in 
non-trawl fisheries. Of the total observed SR/RE bycatch from 1995 and 
1996, 20.5 percent and 10.1 percent, respectively, were taken in non-
trawl fisheries.
    In 1997, inseason management of groundfish fisheries in the AI was 
frustrated by the relatively high bycatch of SR/RE in the POP and Atka 
mackerel trawl fisheries (781 mt and 161 mt, respectively). This 
resulted in a total catch that exceeded the acceptable biological catch 
for SR/RE. Estimates of SR/RE bycatch through mid-1997 indicated that 
the overfishing level would be reached if fisheries that took these 
species in the AI were not closed. As a result, NMFS prohibited the 
retention of Atka mackerel, Pacific cod, and rockfish by vessels using 
trawl gear and retention of Pacific cod and Greenland turbot by vessels 
using hook-and-line gear. Had it been necessary, NMFS was prepared to 
close the Individual Fishing Quota fishery for sablefish to prevent 
overfishing of SR/RE. Thus, although overfishing concerns stemmed 
primarily from the bycatch of SR/RE in the POP and Atka mackerel trawl 
fisheries, non-trawl fisheries that also take incidental amounts of 
these rockfish were closed, or threatened with closure, to prevent 
overfishing of SR/RE. These overfishing closures disrupted fishing 
plans and resulted in a loss of economic opportunity for the trawl and 
non-trawl fishing industry.
    Concerns about the overall management of the SR/RE TAC, as well as 
trawl and non-trawl industry frustration about actual or potential 
fishery closures resulting from overfishing concerns, prompted the 
Council to take several actions at its June and September 1997 
meetings. First, the Council recommended that separate maximum 
retainable bycatch (MRB) percentages be established for SR/RE that 
would minimize the impact that ``topping off'' behavior may have on the 
rate at which the SR/RE TAC is reached. ``Topping off'' occurs when 
vessel operators alter fishing operations to catch more SR/RE than they 
otherwise would so that their retained catch of these species may be 
maximized under MRB constraints. To minimize this practice, the Council 
voted to establish a separate MRB percentage for SR/RE of 7 percent 
relative to certain deepwater species (primarily POP) and 2 percent 
relative to all other species except arrowtooth flounder, which cannot 
be used as a species against which SR/RE may be retained. A final rule 
that implemented the Council's recommended MRB percentages was 
published in the Federal Register on March 31, 1998 (63 FR 15334), 
effective on April 30, 1998.
    In spite of the proposed MRB percentages, overall bycatch amounts 
of SR/RE still could pose concern because the TAC amounts annually 
specified for SR/RE are small in comparison to the high volume POP and 
Atka mackerel trawl fisheries. Consequently, representatives of the 
trawl and non-trawl industries recommended that the Council adopt an 
FMP amendment to allocate SR/RE between gear groups. At its February 
1998 meeting, the Council approved Amendment 53 to the FMP. After 
subtraction of reserves, this amendment would allocate 30 percent of 
the remaining SR/RE TAC to non-trawl gear and 70 percent of the 
remaining SR/RE TAC to trawl gear.
    The industry-recommended allocation of SR/RE TAC between trawl and 
non-trawl vessels is intended to provide an allocation to the non-trawl 
fleet in excess of actual relative harvest in recent years. This 
measure should provide these operations adequate opportunity to fully 
harvest their allocations of Pacific cod and sablefish. Trawl industry 
representatives endorsed this split, recognizing that trawl bycatch 
rates will likely decrease as a result of the proposed reduction in the 
MRB percentages for SR/RE. A gear allocation based solely on historical 
catch between gear groups would not adequately account for the fact 
that non-trawl fisheries have been preempted in the past by closures 
resulting from trawl bycatch of SR/RE; nor would it conform with an 
industry negotiated settlement on what an equitable allocation should 
be. Finally, a gear-specific allocation of SR/RE would allow more 
effective management of SR/RE in both fisheries and minimize the 
potential for over harvest of the SR/RE TAC.

Classification

    At this time, NMFS has not determined that the FMP amendment this 
rule would implement is consistent with the national standards of the 
Magnuson-Stevens Act and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period.
    NMFS prepared a regulatory impact review that describes the impact 
this proposed rule, if adopted, would have on small entities. 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 impact on a substantial number of small 
entities as follows:

    The Small Business Administration has defined all fish-
harvesting or hatchery businesses that are independently owned and 
operated, not dominant in their field of operation, with annual 
receipts not in excess of $3,000,000 as small businesses. 
Additionally, seafood processors with 500 employees or fewer, 
wholesale industry members with 100 employees or fewer, not-for-
profit enterprises, and government jurisdictions with a population 
of 50,000 or less are considered small entities. NMFS has determined 
that a ``substantial number'' of small entities would generally be 
20 percent of the total universe of small entities affected by the 
regulation. A regulation would have a ``significant economic 
impact'' on these small entities if it reduced annual gross revenues 
by more than 5 percent, increased total costs of production by more 
than 5 percent, resulted in compliance costs for small entities that 
are at least 10 percent higher than compliance costs as a percent of 
sales for large entities, or would be likely to cause approximately 
2 percent of the affected small businesses to go out of business. 
NMFS assumes that catcher vessels participating in the Alaska 
groundfish fisheries are ``small entities'' for purposes of the 
Regulatory Flexibility Act.

    In 1996, 213 vessels participated in the Aleutian Islands (AI) 
groundfish fisheries all of which could be affected by this rule. Of 
these, 140 vessels (66 percent) were catcher vessels and would be 
considered the universe of impacted small entities by NMFS. One 
hundred percent of these small entities

[[Page 23263]]

could be affected by this rule. Thus, this rule affects a 
substantial number of small entities.

    There is no directed fishery for SR/RE. These species are taken 
as bycatch in other BSAI fisheries, including Pacific ocean perch, 
Atka mackerel, Pacific cod, sablefish, and Greenland turbot. When 
the SR/RE total allowable catch is taken, the other fisheries that 
take SR/RE are closed. Trawl vessels generally take more SR/RE than 
non-trawl fisheries. To prevent trawl fisheries from closing non-
trawl fisheries, the proposed rule would allocate 30 percent of SR/
RE bycatch to non-trawl vessels.

    During 1995 and 1996, non-trawl vessels were responsible for 22 
percent and 18 percent respectively of the bycatch of SR/RE. Thus, 
the proposed allocation is in excess of the actual amount of bycatch 
in the non-trawl sector and represents a shift of approximately 10 
percent from the trawl to the non-trawl sector. During 1996, 93 non-
trawl catcher vessels fished in the AI subarea. During 1997, small 
entities that participated in Aleutian Island non-trawl fisheries 
landed an estimated $1,618,506 worth of sablefish, rockfish, 
Greenland turbot and Pacific cod. These vessels would be positively 
impacted by this rule, because it would be less likely that non-
trawl fisheries would be shut down due to SR/RE bycatch concerns.

    During 1996, 47 trawl catcher vessels fished in the AI. These 
vessels could be negatively impacted by the proposed rule to the 
extent that SR/RE bycatch concerns result in shortened trawl 
seasons. However, only those fisheries in which SR/RE bycatch is 
high, primarily Atka mackerel and Pacific ocean perch, would risk 
early closure. Both of these fisheries are primarily undertaken by 
catcher/processor vessels (large entities). Between 1992 and 1996, 
only two catcher vessels (1.4 percent of the affected small 
entities) participated in the Pacific ocean perch trawl fishery and 
no catcher boats participated in the Atka mackerel trawl fishery. 
Both of these vessels would be able to switch to other fisheries in 
the event that the Pacific ocean perch fishery were shut down due to 
SR/RE bycatch concerns. NMFS data indicate that these two vessels 
landed only small amounts of Pacific ocean perch.

    The proposed amendment would reduce the amount of SR/RE 
available to the trawl sector by approximately 10 percent. To the 
extent that small entities participating in trawl fisheries actually 
retain SR/RE, this reduction would cause a negative impact. In 1996, 
small entities retained only 3,300 pounds. of SR/RE. Less than 600 
pounds was landed by small entities participating in trawl 
fisheries. The remaining 2,700 pounds was landed by small entities 
participating in non-trawl fisheries. If the amount landed by trawl 
catcher vessels were reduced by 10 percent, a loss of 60 pounds, or 
$66, could potentially result.

    Thus, NMFS is able to conclude that substantially fewer than 20 
percent of the affected small entities would experience any negative 
impact at all, and that in no case would this rule result in a 
significant impact on a substantial number of small entities.

    As a result, a regulatory flexibility analysis was not prepared. A 
copy of the analysis is available from NMFS (See ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: April 21, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for 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. 679.20, paragraph (a)(9) is redesignated as paragraph 
(a)(10), and a new paragraph (a)(9) is added to read as follows:


Sec. 679.20  General limitations.

* * * * *
    (a) * * *
    (9) BSAI shortraker rockfish and rougheye rockfish. After 
subtraction of reserves, the TAC of Shortraker rockfish and rougheye 
rockfish specified for the Aleutian Islands subarea will be allocated 
30 percent to vessels using non-trawl gear and 70 percent to vessels 
using trawl gear.
* * * * *
[FR Doc. 98-11242 Filed 4-27-98; 8:45 am]
BILLING CODE 3510-22-F