[Federal Register Volume 65, Number 95 (Tuesday, May 16, 2000)]
[Rules and Regulations]
[Pages 31105-31107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12291]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 991221345-0108-02; 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: Final rule.

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SUMMARY: NMFS issues 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 consists of three 
regulatory changes. First, it prohibits the use of nonpelagic trawl 
gear in the directed non-community development quota (CDQ) pollock 
fisheries of the Bering Sea and Aleutian Islands (BSAI). Second, it 
makes the performance standard for pelagic trawl gear applicable at all 
times to vessels in the directed non-CDQ pollock fishery in the BSAI. 
Third, it reduces the crab and Pacific halibut (halibut) bycatch limits 
established for the BSAI groundfish trawl fisheries. 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: Effective June 15, 2000.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) and the Final Regulatory Flexibility Analysis (FRFA) 
prepared for this action may be obtained from the Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel, or by calling 
the Alaska Region, NMFS, at 907-586-7228.

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 
Management Council (Council) prepared the FMP, and NMFS approved it, 
under the Magnuson-Stevens Act. Regulations governing the groundfish 
fisheries of the BSAI appear at 50 CFR parts 600 and 679.

Background and Need for Action

    The objective of Amendment 57 is to reduce bycatch in the BSAI 
pollock fishery. The amendment and its implementing regulations are 
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.
    NMFS published the proposed rule to implement Amendment 57 in the 
Federal Register on December 29, 1999 (64 FR 73003). The public comment 
period ended on February 14, 2000. NMFS approved Amendment 57 on March 
8, 2000.
    The final action to implement the amendment has three parts.

1. Prohibition on the Use of Nonpelagic Trawl Gear in the BSAI Directed 
Non-CDQ Pollock Fishery

    This rule prohibits nonpelagic trawling for non-CDQ pollock in the 
BSAI. Since January 1999, the entire BSAI pollock TAC, except for the 
CDQ fishery, has been allocated to pelagic trawl gear.
    The prohibition is expected to reduce bycatch on a permanent basis 
(for the past 2 years the nonpelagic trawl ban has been in effect 
through allocation of zero TAC) while imposing a relatively low cost on 
the fishery. Pollock is the only fishery where both pelagic and 
nonpelagic trawl gear are used. Pelagic gear has a substantially lower 
bycatch rate for halibut and crab. Most fishing for pollock in the BSAI 
was conducted with pelagic gear even before 1999.

2. Performance Standard

    The existing performance standard for pelagic trawl gear at 
Sec. 679.7(a)(14) prohibits a vessel engaged in directed fishing for 
pollock, when directed fishing for pollock with nonpelagic trawl gear 
is closed, 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, indicate that the 
trawl has been in contact with the bottom. The standard is revised to 
make it applicable at all times to vessels engaged in a directed 
fishery for non-CDQ pollock in the BSAI because all vessels, except 
those fishing for CDQ pollock, are prohibited from using nonpelagic 
trawl gear.

3. Prohibited Species Catch (PSC) Limits

    The final rule reduces the bycatch limit for halibut and crab 
caught using trawl gear in the BSAI. The CDQ program will 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 metric 
tons (mt). Crab bycatch limits vary according to abundance and spawning 
biomass as determined by annual surveys.
    This final rule reduces the halibut PSC limit by 100 mt to 3,675 
mt. The rule reduces the PSC allowance for red king crabs by 3,000 
animals, for Chionoecetes (C.) bairdi crabs by 50,000 animals, and for 
C. opilio crabs by 150,000 animals. The rule reduces the C. bairdi 
crabs allowance 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 halibut and the 
three PSC crab species. The Council chose Option 3 because it more 
realistically conforms to the amount of bycatch likely to be avoided as 
a result of the prohibition on nonpelagic trawl gear. The analysis of 
all options and alternatives is contained in the EA/RIR, the Initial 
Regulatory Flexibility Analysis, and the FRFA that were prepared for 
this action.

Pollock CDQ Fisheries

    Under this final rule, vessels fishing for CDQ pollock are not 
subject to the prohibition on the use of nonpelagic trawl gear. 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. Under this final rule, the CDQ program will receive 
a reduced allocation of PSC, because it will continue to receive a 7.5 
percent

[[Page 31106]]

allocation of what will be a reduced overall PSC allowance. Therefore, 
although the prohibition the use of on nonpelagic trawl gear will not 
apply to the CDQ fisheries, the collateral reduction in PSC allowance 
will increase the effect of the existing incentive for CDQ groups to 
minimize the bycatch of PSQ species.

Fishing Trip Definition

    This final rule also changes the ``fishing trip'' definition 
contained in Sec. 679.2. Under the new definition, when a vessel begins 
fishing with a new gear type, it must start recordkeeping for a new 
fishing trip. This change enables, for example, a vessel legitimately 
fishing with bottom trawl gear for yellowfin sole, and 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.

Changes From Proposed to Final Rule

    One technical change was made from the proposed rule to this final 
rule. This change clarifies that the performance standard applies at 
all times to non-CDQ trawl vessels in the directed fishery for pollock 
in the BSAI, but that the performance standard has not changed for 
vessels fishing in the GOA (Sec. 679.7((a)(14)).

Response to Comments

    NMFS received one letter during the public comment period, from the 
Alaska Marine Conservation Council. The letter supported the amendment 
and rulemaking in general but expressed disappointment that the Council 
and NMFS did not set a separate halibut bycatch allowance for the 
directed pollock fishery in the BSAI that, when reached, would require 
closure of the directed fishery for pollock. The EA/RIR/IRFA for 
Amendment 57 considered a regulatory amendment that would have split 
out pollock from the pollock/Atka mackerel/other species category and 
accounted for PSC bycatch separately. The RIR/IRFA analysis indicated 
potential problems with this regulatory amendment. According to the 
analysis, the directed pollock fishery generates about $382 for the 
fishery per pound of halibut caught, as opposed to less than $50 per 
pound for other groundfish fisheries examined. If the pollock fishery 
were to meet its PSC limit in the BSAI, resulting in a closure of the 
fishery, major costs could be incurred, the magnitude of which would 
depend in part on the amount of remaining pollock TAC. In view of these 
potentially high costs, compared to the benefits of holding the pollock 
fishery more strictly accountable for its bycatch, managers might tend 
to apportion more halibut PSC to the pollock category than warranted by 
historical catch records. In that case, the halibut PSC limit for other 
groundfish fisheries would be correspondingly lower, and amount to a 
cost to those fisheries that would not occur if the fishery were not 
split. Finally, the bycatch of halibut and crab in the pollock fishery 
is very low; only about 3 percent of trawl halibut bycatch mortality 
and less than 0.4 percent of crab taken in the trawl fisheries. NMFS 
believes it would be more appropriate to work with the Council to 
develop measures that would result in meaningful reductions of overall 
bycatch in the fisheries that are responsible for taking greater 
proportions of bycatch.
    In light of the high costs associated with a separate halibut 
bycatch allowance, and the relatively small gains in bycatch reduction 
that would result, NMFS believes that the proposed action is fully 
consistent with national standard 9's mandate to minimize bycatch ``to 
the extent practicable.''

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866. This rule imposes no new reporting, recordkeeping, or 
compliance requirements.
    NMFS has prepared an FRFA that describes the economic impact this 
rule is expected to have on small entities. A copy of this analysis is 
available from NMFS (see ADDRESSES).
    Analysis of catch data from 1997 to 2000 indicates that no vessels 
will be adversely affected by the Council's preferred alternative with 
respect to buying and using new gear because all vessels currently 
eligible to fish for pollock in the BSAI under the American Fisheries 
Act (AFA) fish with pelagic gear. In 1996, five small catcher vessels 
used bottom trawl gear only. This number dropped to two vessels in 
1997. In 1999 and 2000, no vessels deployed bottom gear in the BSAI 
pollock fishery because bottom trawling for pollock was closed those 
years through the annual specifications process. This action only has 
the effect of making permanent a prohibition on the use of bottom trawl 
gear in the pollock fishery that has already been in place since 
January 1999.
    Of the approximately 120 catcher vessels that are eligible to fish 
for pollock in the BSAI under the AFA, approximately 60 are small 
entities, and these vessels have fished for pollock exclusively with 
pelagic trawl gear for the past 2 years. None of the 21 catcher/
processors eligible to fish for pollock under the AFA are small 
entities under the Regulatory Flexibility Act. The crab performance 
standard may pose some unquantifiable inconvenience to vessel operators 
fishing with pelagic gear, as it is intended to discourage them from 
trawling on the bottom. To the extent that they have chosen to fish on 
the bottom in the past, economic theory suggests that they were 
probably gaining some economic advantage the past 2 years.
    The reductions in overall PSC limits for halibut, red king crab, 
Tanner crab, and snow crab are not expected to cause significant 
impacts to small entities, as the reductions are based on the expected 
improvement in bycatch rates and are not expected to constrain fishing 
activity. The actual improvement in bycatch from using the cleaner 
pelagic gear occurred in 1999 when the Council began eliminating bottom 
trawling for pollock on an annual basis. Many factors operate to 
influence bycatch in the fisheries, but to the extent that bycatch was 
reduced in the pollock fishery through the use of cleaner gear, the 
other trawl fisheries (e.g., rock sole, yellowfin sole, Pacific cod) 
may have received an unintended increase since 1999. This action 
constrains the other trawl fisheries by removing their unintended 
increase estimated as: halibut-100 mt; red king crabs-3,000 animals; C. 
bairdi crabs- 50,000 animals; and C. opilio crabs-160,000 animals. The 
reductions in PSC limits turn the PSC savings in the pollock fishery 
into a conservation savings as intended rather than just a reallocation 
between target fisheries. The pollock fishermen will be no worse off 
than they were before the process of prohibiting nonpelagic trawls in 
the pollock fishery began.
    Under this final rule, CDQ vessels are not subject to the 
prohibition on the use of nonpelagic trawl gear because they have a 
built-in incentive to minimize bycatch. Once a group has reached its 
allocation of any PSC species, all of its member vessels must stop 
fishing and forego any remaining CDQ allocations of groundfish species 
for the season.
    The CDQ groups will not be affected very much by this exemption, as 
they primarily use pelagic gear to fish for pollock. In 1998, for 
example, only 2 percent of the approximately 85,000 mt of pollock 
harvested under the CDQ program was harvested using bottom trawl gear. 
Furthermore, the catcher vessels that have harvested pollock CDQ thus 
far are larger catcher vessels, owned by the shoreside processors, 
which are CDQ partners and; therefore, are not small entities under the 
RFA.

[[Page 31107]]

    Under this final rule, CDQ groups will continue to receive 7.5 
percent of all PSC limits, which, since the overall limits will be 
reduced, will result in reduced Prohibited Species Quota (PSQ) 
allocations to CDQ groups. These reductions constitute an added 
incentive to improve techniques for minimizing bycatch. The reductions 
are small in proportion to the total PSQ allocations, but it is 
possible that they could result in some loss of CDQ groundfish. This 
could happen if a group reached one of its PSQ allocations before it 
otherwise would have, and was required to stop fishing for CDQ 
groundfish species.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: May 10, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons discussed in the preamble, 50 CFR part 679 is 
amended to read 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'', paragraph (1) 
is amended by redesignating paragraph (1)(iv) as paragraph (1)(v), 
adding a new paragraph (1)(iv), and removing the final word, ``or,'' 
from paragraph (1)(iii), 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
* * * * *

    3. In Sec. 679.7, paragraph (a)(14) is revised to read as follows:


Sec. 679.7  Prohibitions.

* * * * *
    (a) * * *
    (14) Trawl gear performance standard--(i) BSAI. Use a vessel to 
participate in a non-CDQ directed fishery for pollock 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.
    (ii) GOA. Use a vessel to participate in a directed fishery for 
pollock using trawl gear when directed fishing for pollock with 
nonpelagic trawl gear is closed 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.
* * * * *
    4. In Sec. 679.20, paragraph (a)(5)(i)(B) is removed and paragraph 
(a)(5)(i)(C) is redesignated as paragraph (a)(5)(i)(B).

    5. In Sec. 679.21, paragraphs (e)(1)(ii)(A) through (C), 
(e)(1)(iii)(A) through (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.
* * * * *

    6. 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. 00-12291 Filed 5-15-00; 8:45 am]
BILLING CODE 3510-22-F