[Federal Register Volume 64, Number 249 (Wednesday, December 29, 1999)]
[Proposed Rules]
[Pages 73003-73005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33853]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 991221345-9345-01; I.D. 113099B]
RIN 0648-AL30


Fisheries of the Exclusive Economic Zone off Alaska; Prohibition 
of Nonpelagic Trawl Gear in the Bering Sea and Aleutian Islands Pollock 
Fishery

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 57 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area (FMP). This action would consist of three 
regulatory changes. First, it would prohibit the use of nonpelagic 
trawl gear in the directed pollock fisheries of the Bering Sea and 
Aleutian Islands (BSAI). Second, the action would revise the existing 
performance standard for pelagic trawl gear. Third, crab and halibut 
bycatch limits established for the BSAI groundfish trawl fisheries 
would be reduced. This action is necessary to address bycatch reduction 
objectives in the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and is intended to further the goals and 
objectives of the FMP.

DATES: Comments on the proposed rule must be received at the following 
address by February 14, 2000.

ADDRESSES: Comments may be mailed to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel or faxed to 
(907) 586-7465. Hand delivery or courier delivery of comments may be 
sent to the Federal Building, 709 West 9th St., Room 453, Juneau, AK 
99801. Copies of Amendment 57 to the FMP and of the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) prepared for this action are available from NMFS 
at the above address or by calling the Alaska Region, NMFS, at 
(907)586-7228. Comments will not be accepted if submitted via e-mail or 
Internet.

FOR FURTHER INFORMATION CONTACT: Nina Mollett, (907)586-7228.

SUPPLEMENTARY INFORMATION:
    NMFS manages the domestic groundfish fisheries of the BSAI under 
the FMP. The North Pacific Fishery Mangement Council (Council) prepared 
the FMP under the Magnuson-Stevens Act. Regulations governing the 
groundfish fisheries of the BSAI appear at 50 CFR parts 600 and 679.
    The Council has submitted Amendment 57 for Secretarial review. A 
Notice of Availability (NOA) of the FMP amendment was published on 
December 10, 1999 with comments on the FMP amendment invited through 
February 7, 2000. Written comments may address the FMP amendment, the 
proposed rule, or both, but must be received by February 7, 2000 to be 
considered in the decision to approve or disapprove the FMP amendment.

Background and Need for Action

    This action is designed to comply with the Magnuson-Stevens Act, 
which emphasizes the importance of reducing bycatch to maintain 
sustainable fisheries. National Standard 9 of the Magnuson-Stevens Act 
mandates that conservation and management measures minimize bycatch, to 
the extent practicable, and minimize mortality where bycatch cannot be 
avoided.
    More specific authority for the proposed rule is provided by 
paragraph 303(b)(2) of the Magnuson-Stevens Act. It states: ``Any 
fishery management plan which is prepared by any Council, or by the 
Secretary, with respect to any fishery, may * * * designate zones 
where, and periods when, fishing * * * shall be permitted only * * * 
with specified types and quantities of fishing gear.''
    The objective of Amendment 57, as adopted by the Council at its 
June 1998 meeting, is to reduce bycatch in the BSAI pollock fishery. 
The proposed action to implement the amendment has three parts.

1. Prohibition on Nonpelagic Trawl Gear in the BSAI Directed Pollock 
Fishery

    Under existing regulations (Sec. 679.20(a)(5)(i)(B)), the 
Administrator of the Alaska Region, NMFS, in consultation with the 
Council, has authority to limit the amount of the total allowable catch 
(TAC) that may be taken in the directed fishery for pollock using 
nonpelagic trawl gear. The Administrator accomplishes this by 
allocating TAC for pollock between pelagic and nonpelagic trawl gear 
types during the annual specification process. In practice, the Council 
has recommended allocating TAC between gear types only twice. In 1990, 
the Bering Sea pollock TAC was split 88 percent for pelagic gear and 12 
percent for nonpelagic trawl gear during the annual specification 
process. No limit was placed on nonpelagic trawl gear during subsequent 
years until the 1999 season, when the entire pollock TAC was allocated 
to pelagic gear and none to nonpelagic gear. This step was taken in 
anticipation of Amendment 57 being approved.
    Currently, NMFS has authority to prohibit nonpelagic trawling for 
pollock in the BSAI under Sec. 679.21(e)(7)(i). When a prohibited 
species catch (PSC) allowance, or a seasonal apportionment of the 
allowance, is reached in the pollock/Atka mackerel/''other species'' 
category, NMFS prohibits nonpelagic trawling for pollock either 
throughout the BSAI, or, depending on the PSC species, in the affected 
zone of the BSAI, for the remainder of the year.
    The Council's rationale for permanently prohibiting nonpelagic 
trawling for pollock in the BSAI, instead of relying on existing 
measures, is that the prohibition is expected to result in needed 
bycatch savings while imposing a relatively low cost on the fishery. 
Pollock is the only fishery where both types of trawl gear are used, 
and already most fishing for pollock is conducted with pelagic trawl 
gear, which has a substantially lower bycatch rate of halibut and crab. 
Although operators who use both types of gear would lose some 
flexibility under this rule, participants in the pollock fishery would 
nevertheless be able to catch the TAC.

2. Performance Standard

    Existing regulations, establish a performance standard to 
discourage operators from fishing on the seabed with pelagic gear at 
times when nonpelagic trawl gear is prohibited in the BSAI. The 
regulations prohibit a vessel engaged in directed fishing for pollock 
from having 20 or more crabs of any species, with a carapace width of 
more than 1.5 inches (38 mm) at the widest dimension, on board at any 
one time. Crabs were chosen for the standard because they inhabit the 
seabed and, if caught with trawl gear, provide proof that a trawl has 
been in contact with the bottom. The proposed rule would clarify that 
the standard

[[Page 73004]]

would be in effect at all times for vessels in the BSAI directed 
fishery for pollock, because the use of nonpelagic trawl gear would be 
prohibited permanently.

3. PSC Limits

    The proposed rule would reduce the bycatch limit for halibut and 
crab caught using trawl gear in the BSAI. The CDQ program would 
continue to receive 7.5 percent of each PSC limit, in accordance with 
Sec. 679.21(e)(1), which contains the existing limits for each PSC 
species in the BSAI. The current halibut PSC allowance is 3,775 mt. 
Crab bycatch limits vary according to abundance and spawning biomass as 
determined by annual surveys.
    Under the proposed rule, halibut bycatch mortality would be reduced 
by 100 mt. The PSC allowance for red king crabs would be reduced by 
3,000 animals, for C. bairdi crabs by 50,000 animals, and for C. opilio 
crabs by 150,000 animals. For C. bairdi crabs, the limit would be 
lowered by 20,000 in Zone 1 and by 30,000 in Zone 2, reflecting the 
larger fishery there.
    The Council recommended these reduced PSC limits after considering 
data on bycatch rates from vessels using pelagic gear while the 
performance standard was in effect. Two other options were considered: 
Option 1 would have reduced only the halibut bycatch limit, and Option 
2 would have reduced bycatch by lesser amounts for all four PSC 
species. The Council chose the proposed approach because it represents 
a more realistic estimate of how much bycatch would be saved by 
prohibiting nonpelagic trawl gear. The analysis of all options and 
alternatives is contained in the EA/RIR/IRFA (see ADDRESSES).

Pollock CDQ Fisheries

    Under this rule, vessels fishing for CDQ pollock would be exempt 
from the nonpelagic trawl gear prohibition. This exemption is based on 
two reasons. First, the structure of the CDQ program provides a strong 
incentive to the CDQ groups and their harvesting partners to use 
fishing gear and fishing techniques that minimize the bycatch of non-
target groundfish and prohibited species. Each CDQ group receives an 
allocation of all the groundfish TAC species. Each CDQ group is 
prohibited from exceeding these allocations. In accounting for the CDQ 
and prohibited species quota (PSQ) allocations, NMFS considers the 
catch by all vessels fishing for the CDQ group. Each CDQ group is each 
responsible for managing the catch of its CDQ and PSQ allocations so as 
to maximize the overall value of the CDQ fisheries. For example, if a 
CDQ group reaches its halibut PSQ allocation, its members must stop all 
CDQ fishing for the group's remaining CDQ allocations, and thus forego 
the value of any unharvested goundfish. This management structure 
provides a substantial incentive to use pelagic gear away from the 
bottom in the pollock CDQ fisheries. In 1998, for example, 98 percent 
of the total pollock CDQ was harvested using pelagic trawl gear.
    The incentive to use gear that will minimize PSC while fishing for 
pollock would be strengthened further by the proposed rule. The CDQ 
program, which currently receives a 7.5 percent allocation of each PSC 
species, would receive a reduced allocation of PSC under the rule, 
because it would continue to receive a 7.5 percent allocation of what 
would be a reduced overall PSC allowance. Therefore, although the 
prohibition on nonpelagic trawl gear in itself would not apply to the 
CDQ fisheries, the collateral reduction in PSC allowance would increase 
the effect of the existing incentive for CDQ groups to minimize the 
bycatch of PSQ species.
    Second, NMFS currently does not have a definition for directed 
fishing for CDQ pollock. Without such a definition, a prohibition 
against using nonpelagic trawl gear while directed fishing for pollock 
would not be enforceable in the CDQ fisheries. NMFS is developing a 
definition for directed fishing for pollock in the CDQ fisheries under 
regulations implementing Amendment 66 to the BSAI groundfish FMP. In 
light of that definition, NMFS may consider extending the prohibition 
on the use of nonpelagic trawl gear in directed fisheries for BSAI 
pollock to the CDQ program. Such an extension would be subject to the 
normal process for public review and comment.

Fishing Trip Definition

    The proposed rule would change the ``fishing trip'' definition 
contained in Sec. 679.2. Under the new definition, when a vessel begins 
fishing with a new gear type, it would be required to start 
recordkeeping for a new fishing trip. This change would enable, for 
example, a vessel legitimately fishing with nonpelagic trawl gear for 
yellowfin sole, and therefore under a maximum retainable bycatch 
restriction for pollock (see Sec. 679.20(e)), to keep clear records if 
it switches to directed fishing for pollock using pelagic gear.

Classification

    At this time, NMFS has not determined that the 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.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Council and NMFS prepared an Initial Regulatory Flexibility 
Analysis that describes the impact this proposed rule, if adopted, 
would have on small entities. Analysis of catch data from 1996 and 1997 
indicates that very few vessels will be adversely affected by the 
Council's preferred alternative to the extent of having to buy or use 
new gear because most vessels fishing for pollock do so mostly using 
pelagic gear. In 1996, five small catcher vessels used nonpelagic trawl 
gear only. This number was recuced to two vessels in 1997. Total 
pollock harvests by the few catcher vessels using only nonpelagic trawl 
gear averaged 85 mt per year during 1996-1997, for an ex-vessel value 
of $17,000, or about $5,000 per vessel per year. This amount is likely 
to be a very small portion (<5 percent) of the annual gross revenues 
for the vessels in question. The few catcher vessels that use only 
nonpelagic trawl gear in the BSAI pollock fishery tend to concentrate 
on other fisheries such as Pacific cod and flatfish. For these small 
vessels, pollock represents a fishery of opportunity that is sometimes 
targeted when other fisheries are closed, but it is not their primary 
source of income. In addition, none of these vessels are believed to 
qualify as future participants in the BSAI pollock fishery under the 
American Fisheries Act (AFA), which limits participation in the BSAI 
pollock fishery to those vessels named in the AFA or meeting certain 
qualifying criteria. Under the AFA, the small vessels in question, with 
a few possible exceptions, are excluded from BSAI pollock fishery by 
statute and will be unaffected by the prohibition on the use of 
nonpelagic trawl gear. Of the approximately 120 catcher vessels that 
are expected to remain in the BSAI pollock fishery under the AFA, 
approximately 60 are small entities, and these vessels fish for pollock 
predominantly with pelagic trawl gear. Some catcher processors that 
target on larger pollock for fillet processing use nonpelagic trawl 
gear for pollock under certain circumstances, and these vessels may 
face impacts if nonpelagic trawl gear is prohibited. However, none of 
the catcher processors in the pollock fishery is a small entity under 
the RFA.
    The crab performance standard may pose some unquantifiable 
inconvenience to vessels with pelagic gear, as they will be forced to 
fish only

[[Page 73005]]

in midwater. To the extent that they have chosen to do otherwise in the 
past, economic theory suggests that they have probably been gaining 
some economic advantage.
    The reductions in overall PSC limits for halibut, red king crab, 
Tanner crab, and snow crab are not likely to cause significant impacts 
to small entities, as the proposed reductions are expected to mirror 
reductions in bycatch resulting from the prohibition on nonpelagic 
trawl gear.
    The Council and NMFS considered alternative approached for meeting 
the Magnuson-Stevens Act's requirement to minimize bycatch that would 
minimize the effect on small entities. While eliminating nonpelagic 
trawling in all fisheries in the BSAI, or eliminating nonpelagic 
trawling in pollock fisheries in the Gulf of Alaska would reduce 
bycatch more dramatically than the proposed approach, such measures 
would be expected to have far more significant effects on many more 
small entities. The no action alternative (alternative 1 in the EA), 
could result in fewer economic effects on small entities depending on 
the Council's future recommended allocations of pollock quota. However, 
it is not clear that the status quo would comply with the requirements 
of the Magnuson-Stevens Act.
    NMFS also considered a regulatory amendment to split the pollock/
Atka mackerel/other species category for purposes of allocating the PSC 
limits among fisheries, but rejected that approach because of the 
potential for major economic consequences.
    While eliminating nonpelagic trawling in all fisheries in the BSAI, 
or eliminating nonpelagic trawling in pollock fisheries in the Gulf of 
Alaska would reduce bycatch more dramatically than the proposed 
approach, such measures would be expected to have far more significant 
effects on many more small entities.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 22, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons discussed 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 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 definition of ``Fishing trip'', is amended by 
redesignating paragraph (1)(iv) as paragraph (1)(v), removing the 
coordinating conjunction, ``or,'' at the end of paragraph (1)(iii), and 
adding paragraph (1)(iv) to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Fishing trip means:
    (1) * * *
    (iv) The vessel begins fishing with different type of authorized 
fishing gear; or
* * * * *
    2. In Sec. 679.7, paragraph (a)(14) is revised to read as follows:


Sec. 679.7  Prohibitions.

* * * * *
    (a) * * *
    (14) Trawl gear performance standard. Use a vessel to participate 
in a directed fishery for pollock in the BSAI using trawl gear and have 
on board the vessel, at any particular time, 20 or more crabs of any 
species that have a carapace width of more than 1.5 inches (38 mm) at 
the widest dimension.
* * * * *


Sec. 679.20  [Amended]

    3. In Sec. 679.20, paragraph (a)(5)(i)(B) is removed and paragraph 
(a)(5)(i)(C) is redesignated as (a)(5)(i)(B).
    4. In Sec. 679.21, paragraphs (e)(1)(ii)(A) through (C), 
(e)(1)(iii)(A) and (B), (e)(1)(iv)(A) through (C), and (e)(1)(v) are 
revised to read as follows:


Sec. 679.21  Prohibited species bycatch management.

* * * * *
    (e) * * *
    (1) * * *
    (ii) * * *
    (A) When the number of mature female red king crabs is at or below 
the threshold of 8.4 million mature crabs or the effective spawning 
biomass is less than or equal to 14.5 million lb (6,577 mt), the Zone 1 
PSC limit will be 32,000 red king crabs.
    (B) When the number of mature female red king crabs is above the 
threshold of 8.4 million mature crabs and the effective spawning 
biomass is greater than 14.5 million lb but less than 55 million lb 
(24,948 mt), the Zone 1 PSC limit will be 97,000 red king crabs.
    (C) When the number of mature female red king crabs is above the 
threshold of 8.4 million mature crabs and the effective spawning 
biomass is equal to or greater than 55 million lb, the Zone 1 PSC limit 
will be 197,000 red king crabs.
    (iii) * * *
    (A) Zone 1. When the total abundance of C. bairdi crabs is:
    (1) 150 million animals or less, the PSC limit will be 0.5 percent 
of the total abundance, minus 20,000 animals.
    (2) Over 150 million to 270 million animals, the PSC limit will be 
730,000 animals.
    (3) Over 270 million to 400 million animals, the PSC limit will be 
830,000 animals.
    (4) Over 400 million animals, the PSC limit will be 980,000 
animals.
    (B) Zone 2. When the total abundance of C. bairdi crabs is:
    (1) 175 million animals or less, the PSC limit will be 1.2 percent 
of the total abundance, minus 30,000 animals.
    (2) Over 175 million to 290 million animals, the PSC limit will be 
2,070,000 animals.
    (3) Over 290 million to 400 million animals, the PSC limit will be 
2,520,000 animals.
    (4) Over 400 million animals, the PSC limit will be 2,970,000 
animals.
    (iv) * * *
    (A) PSC Limit. The PSC limit will be 0.1133 percent of the total 
abundance, minus 150,000 C. opilio crabs, 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 
4.350 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 12.850 million animals.
    (v) Halibut. The PSC limit of halibut caught while conducting any 
trawl fishery for groundfish in the BSAI during any fishing year is an 
amount of halibut equivalent to 3,675 mt of halibut mortality.
* * * * *
    5. In Sec. 679.24, paragraph (b)(4) is added to read as follows:


Sec. 679.24  Gear limitations.

* * * * *
    (b) * * *
    (4) BSAI pollock nonpelagic trawl prohibition. No person may use 
nonpelagic trawl gear to engage in directed fishing for non-CDQ pollock 
in the BSAI.
* * * * *
[FR Doc. 99-33853 Filed 12-28-99; 8:45 am]
BILLING CODE 3510-22-F