[Federal Register Volume 62, Number 239 (Friday, December 12, 1997)]
[Proposed Rules]
[Pages 65402-65405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32473]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 971124274-7274-01; I.D. 110597A]
RIN 0648-AH67


Fisheries of the Exclusive Economic Zone Off Alaska; Forage Fish 
Species Category

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 36 to the 
Fishery Management Plan for the Groundfish Fishery of the Bering Sea 
and Aleutian Islands Area and Amendment 39 to the Fishery Management 
Plan for Groundfish of the Gulf of Alaska (FMPs). This action would 
define a forage fish species category in both FMPs and implement 
associated management measures. The intended effect of this action is 
to prevent the development of a commercial directed fishery for forage 
fish, which are a critical food source for many marine mammal, seabird, 
and fish species. This action is necessary to conserve and manage the 
forage fish resource off Alaska and to further the goals and objectives 
of the FMPs.

DATES: Comments on the proposed rule must be received at the following 
address by January 26, 1998.

ADDRESSES: Comments must be sent to the Assistant Regional 
Administrator, 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 
proposed FMP amendments and the Environmental Assessment/Regulatory 
Impact Review (EA/RIR) prepared for Amendments 36 and 39 are available 
from NMFS at the above address, or by calling the Alaska Region, NMFS, 
at 907-586-7228.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the 
exclusive economic zone of the Bering Sea and Aleutian Islands 
management area (BSAI) and of the Gulf of Alaska (GOA) are managed by 
NMFS under the FMPs. The FMPs were prepared by the North Pacific 
Fishery Management Council (Council) under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Regulations 
governing the groundfish fisheries of the BSAI and GOA appear at 50 CFR 
parts 600 and 679.
    The Council has submitted Amendments 36 and 39 for Secretarial 
review and a Notice of Availability (NOA) of the FMP amendments was 
published on November 12, 1997 (62 FR 60682), with comments on the FMP 
amendments invited through January 12, 1997. Written comments may 
address the FMP amendments, the proposed rule, or both, but must be 
received by January 12, 1997, to be considered in the approval/
disapproval decision on the FMP amendments.

Management Background and Need for Action

    Forage fish are abundant fishes that are preyed upon by marine 
mammals, seabirds, and commercially important groundfish species. 
Forage fish perform a critical role in the complex ecosystem functions 
of the BSAI and the GOA by providing the transfer of energy from the 
primary or secondary producers to higher trophic levels.
    Significant declines in marine mammals and seabirds in the BSAI and 
GOA have raised concerns that decreases in the forage fish biomass may 
contribute to the further decline of marine mammal, seabird, and 
commercially important fish populations. Forage fish are the principal 
diet of more than two thirds of Alaskan seabirds. In addition, many 
seabirds can subsist on a variety of invertebrates and fish during

[[Page 65403]]

nonbreeding months but can only raise their nestlings on forage fish. 
Small forage fish such as capelin, herring, sandlance, and eulachon 
have also been recognized as important prey items for a variety of 
marine mammal species including Northern fur seal, Steller sea lion, 
harbor seal, spotted seal, bearded seal, humpback whale, and fin whale. 
Additional information on forage fish and their role in the ecosystem 
is available in the EA/RIR prepared for Amendments 36 and 39 (see 
ADDRESSES).
    Members of the fishing industry and public have expressed concern 
that the current FMP structure may allow unrestricted commercial 
harvest to occur on forage fish species because these species are 
currently grouped into the ``other species'' and non-allocated 
categories of the FMPs. In addition, the International Council for the 
Exploration at Sea (ICES) has recently recommended that fishery 
managers develop measures to avoid the commercial targeting of food 
resources that are important to marine mammals and seabirds. 
Establishing forage fish as a separate category in the FMPs would 
provide the mechanism to better manage these species.

Forage Fish Species Category

    Amendments 36 and 39 would establish a new species category for 
forage fish. The forage fish species category would include all species 
of the following families:
    Osmeridae (eulachon, capelin, and other smelts),
    Myctophidae (lanternfishes),
    Bathylagidae (deep-sea smelts),
    Ammodytidae (Pacific sand lance),
    Trichodontidae (Pacific sand fish),
    Pholidae (gunnels),
    Stichaeidae (pricklebacks, warbonnets, eelblennys, cockscombs and 
shannys),
    Gonostomatidae (bristlemouths, lightfishes, and anglemouths), and 
the
    Order Euphausiacea (krill).
    These species have been grouped together because they are 
considered to be primary food resources for other marine animals and 
they have the potential to be the targets of a commercial fishery.

Management Measures Proposed for Forage Fish

Affected Vessels and Processors

    The following management measures would apply to all vessels 
fishing for groundfish in the Federal waters of the BSAI or GOA or 
processing groundfish harvested in the Federal waters of the BSAI or 
GOA. These management measures do not limit traditional or subsistence 
harvests of forage fish species from within State waters.

Prohibition on Directed Fishing

    Under Amendments 36 and 39, directed fishing for forage fish would 
be prohibited at all times in the Federal waters of the BSAI and GOA. A 
maximum retainable bycatch (MRB) percentage of 2 percent would be 
established for forage fish, meaning that vessels fishing for 
groundfish could retain a quantity of forage fish equal to no more than 
2 percent of the round weight or round-weight equivalent of groundfish 
species open to directed fishing that are retained on board the vessel 
during a fishing trip. NMFS data indicate that the aggregate percentage 
of forage fish incidentally caught in current groundfish fisheries 
rarely exceeds 2 percent, and many vessels rarely or never encounter 
catch of forage fish species. Consequently, bycatch of forage fish 
species is not considered a problem in the groundfish fisheries off 
Alaska, and the 2-percent MRB is unlikely to result in increased 
discards of forage fish species.

Harvest Quotas

    Insufficient information exists upon which to specify a total 
allowable catch amount (TAC) for forage fish species. Therefore, 
Amendments 36 and 39 do not establish procedures for establishing an 
annual TAC for forage fish species. However, by establishing a new 
species category for forage fish, NMFS will be able to collect 
additional data on forage fish from vessel logbooks, weekly production 
reports, and observer reports. This information may be used to evaluate 
the need for and appropriateness of other management measures for 
forage fish species.

Limits on Sale, Barter, Trade or Processing

    The sale, barter, trade, or processing of forage fish species would 
be prohibited for vessels fishing for groundfish in the Federal waters 
of the BSAI or GOA, or processing groundfish harvested in the BSAI or 
GOA, except that retained catch of forage fish species not exceeding 
the 2-percent MRB may be processed into fishmeal and sold. The Council 
chose to allow processing of forage fish into fishmeal within the 2-
percent MRB amount to avoid placing an undue burden on operations that 
process unsorted processing waste into fishmeal. Industry 
representatives indicated that separating small quantities of forage 
fish from the volumes of fish and fish waste entering a fishmeal plant 
would be nearly impossible. The small volumes of fishmeal production 
that would be allowed under this rule are not expected to provide an 
incentive for vessels to target on forage fish through ``topping off'' 
activity.
    These restrictions would not apply to onshore processors due to 
limitations of the Secretary's authority under the Magnuson-Stevens 
Act. At the June 1997 Council meeting, the State of Alaska indicated 
that it intends to proceed with parallel forage fish regulations to 
restrict the harvest of forage fish within State waters and the 
processing of forage fish by onshore processors.

Classification

    At this time, NMFS has not determined that the amendments that this 
rule would implement are 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.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce made the following certification 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.

    This action would affect a substantial number of small entities 
because the proposed management measures would apply to all vessels 
fishing for or processing groundfish in the Federal waters off 
Alaska. However, the impacts of the proposed action would not be 
``significant'' the purpose of the Regulatory Flexibility Act (RFA). 
Compliance costs would not be significant because vessels fishing 
for groundfish rarely, if ever, incidentally harvest forage fish in 
quantities that would exceed the proposed 2-percent MRB. While 
vessel operators would be required to monitor catch and discards of 
forage fish as part of their normal recordkeeping and reporting 
requirements, these compliance costs would not reduce annual gross 
revenues by more than 5 percent, increase total costs of production 
by more than 5 percent, or result in compliance costs for small 
entities that are at least 10 percent higher than compliance costs 
as a percent of sales for large entities. The proposed action would 
affect fishermen who wish to target forage fish. Several vessel 
operators have expressed interest in pursuing the capelin fishery 
and have done so in the past. Alaska Department of Fish and Game 
records indicate that between 1984 and 1994, six vessels harvested a 
combined total of 1,493 mt of capelin from the Togiak region of 
Bristol Bay. These six vessels do not represent a substantial number 
of small entities for purposes of the RFA. Although NMFS does not 
have data on how great a

[[Page 65404]]

percentage of these six vessels' annual incomes derives from the 
directed capelin fishery, it is unlikely that any of these vessels 
would experience a greater than 5 percent reduction in gross annual 
income as a result of this rule given the small amount of capelin 
taken in the directed fishery. No commercial harvests of other 
forage fish species have been reported in Alaska.

    An informal consultation under the Endangered Species Act was 
concluded for Amendments 36 and 39 on July 11, 1997. As a result of the 
informal consultation, the Regional Administrator determined that 
fishing activities under this rule are not likely to affect adversely 
endangered or threatened species.
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: December 5, 1997.
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 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 ``forage fish'' is added in 
alphabetical order as follows:


Sec. 679.2  Definitions.

* * * * *
    Forage fish means all species of the following families:
    (1) Osmeridae (eulachon, capelin and other smelts),
    (2) Myctophidae (lanternfishes),
    (3) Bathylagidae (deep-sea smelts),
    (4) Ammodytidae (Pacific sand lance),
    (5) Trichodontidae (Pacific sandfish),
    (6) Pholidae (gunnels),
    (7) Stichaeidae (pricklebacks, warbonnets, eelblennys, cockscombs 
and shannys),
    (8) Gonostomatidae (bristlemouths, lightfishes, and anglemouths), 
and the Order
    (9) Euphausiacea (krill).
    3. In Sec. 679.20, a new paragraph (i) is added as follows:


Sec. 679.20  General limitations.

* * * * *
    (i) Forage fish--(1) Definition. See Sec. 679.2.
    (2) Applicability. The provisions of Sec. 679.20(i) apply to all 
vessels fishing for groundfish in the BSAI or GOA and to all vessels 
processing groundfish harvested in the BSAI and GOA.
    (3) Closure to directed fishing. Directed fishing for forage fish 
is prohibited at all times in the BSAI and GOA.
    (4) Limits on sale, barter, trade, and processing. The sale, 
barter, trade, or processing of forage fish is prohibited, except as 
provided in paragraph (i)(5) of this section.
    (5) Allowable fishmeal production. Retained catch of forage fish 
not exceeding the maximum retainable bycatch amount may be processed 
into fishmeal for sale, barter, or trade.
* * * * *
    4. In Sec. 679.22, paragraph (c) is revised to read as follows:


Sec. 679.22  Closures.

* * * * *
    (c) Directed fishing closures. See Sec. 679.20(d) and 
Sec. 679.20(i).
* * * * *
    5. Table 2 to 50 CFR part 679 is amended by adding species codes 
207 Gunnels, 208 Pricklebacks, 210 Pacific sandfish, 772 Lanternfishes, 
209 Bristlemouths, lightfishes, and anglemouths (Gonostomatidae), 773 
Deep-sea smelt (Bathylagidae), 774 Pacific sand lance, 800 Krill, in 
numerical order under as follows:

                   Table 2 to Part 679.--Species Codes                  
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                Code                                Species             
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                 *        *        *        *        *                  
                              GROUP CODES                               
                                                                        
                  *        *        *        *        *                 
207.................................  Gunnels                           
208.................................  Pricklebacks, warbonnets,         
                                       eelblennys, cockscombs and       
                                       shannys (family Stichaeids)      
209.................................  Bristlemouths, lightfishes, and   
                                       anglemouths (family              
                                       Gonostomatids)                   
210.................................  Pacific sandfish                  
                                                                        
                  *        *        *        *        *                 
772.................................  Lanternfishes                     
773.................................  Deep-sea smelts (family           
                                       Bathylagids)                     
774.................................  Pacific sand lance                
800.................................  Krill (family Euphausiids)        
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* * * * *
    6. Tables 10 and 11 to 50 CFR part 679 are amended by adding a 
column for aggregate forage fish as follows:
    In Table 10 to 50 CFR part 679, a column for ``Aggregate Forage 
Fish'' will be added between columns ``Atka mackerel'' and ``Other 
species,'' and footnote 5 is added to read ``Forage fish are defined at 
Sec. 679.20(i)(1).''
    In Table 11 to 50 CFR part 679, a column for ``Aggregate Forage 
Fish'' will be added between columns ``Squid'' and ``Other species,'' 
and footnote 3 will be redesignated as footnote 4, and a new footnote 3 
is added to read ``Forage fish are defined at Sec. 679.20(i)(1).''
    The tables, as amended, read as follows:

                                                                    Table 10.--Current Gulf of Alaska Retainable Percentages                                                                    
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                                                                                                                        Bycatch Species \1\                                                     
                                                                  ------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                              Aggregate         
                                                                   Pollock  Pacific    Deep      Rex   Flathead   Shallow  Arrow-  Sablefish   Aggregated    DSR      Atka      Forage    Other 
                                                                              cod    flatfish   sole     sole    flatfish   tooth               rockfish     SEEO   mackerel   fish \5\  species
--------------------------------------------------------------------------------------------------------------------------------------------------\2\--------\4\--------------------------------
                          Basis Species                                                                                                                                                         
Pollock..........................................................   \3\ na       20       20       20       20        20       35         1           5         10       20          2        20
Pacific cod......................................................       20   \3\ na       20       20       20        20       35         1           5         10       20          2        20
Deep flatfish....................................................       20       20   \3\ na       20       20        20       35         7          15          1       20          2        20
Rex sole.........................................................       20       20       20   \3\ na       20        20       35         7          15          1       20          2        20
Flathead sole....................................................       20       20       20       20   \3\ na        20       35         7          15          1       20          2        20
Shallow flatfish.................................................       20       20       20       20       20    \3\ na       35         1           5         10       20          2        20
Arrowtooth.......................................................        5        5        0        0        0         0   \3\ na         0           0          0        0          2        20
Sablefish........................................................       20       20       20       20       20        20       35    \3\ na          15          1       20          2        20
Pacific Ocean perch..............................................       20       20       20       20       20        20       35         7          15          1       20          2        20
Shortraker/rougheye..............................................       20       20       20       20       20        20       35         7          15          1       20          2        20
Other rockfish...................................................       20       20       20       20       20        20       35         7          15          1       20          2        20
Northern rockfish................................................       20       20       20       20       20        20       35         7          15          1       20          2        20
Pelagic rockfish.................................................       20       20       20       20       20        20       35         7          15          1       20          2        20
DSR-SEEO.........................................................       20       20       20       20       20        20       35         7          15     \3\ na       20          2        20

[[Page 65405]]

                                                                                                                                                                                                
Thornyhead.......................................................       20       20       20       20       20        20       35         7          15          1       20          2        20
Atka mackerel....................................................       20       20       20       20       20        20       35         1           5         10   \3\ na          2        20
Other species....................................................       20       20       20       20       20        20       35         1           5         10       20          2    \3\ na
Aggregated amount non-groundfish species.........................       20       20       20       20       20        20       35         1           5         10       20          2       20 
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\1\ For definition of species, see Table 1 of the Gulf of Alaska groundfish specifications.                                                                                                     
\2\ Aggregated rockfish means rockfish of the genera Sebastes and Sebastolobus except in the southeast Outside District where demersal shelf rockfish (DSR) is a separate category.             
\3\ na = not applicable.                                                                                                                                                                        
\4\ SEEO = Southeast Outside District.                                                                                                                                                          
\5\ Forage fish are defined at Sec.  679.20(i)(1).                                                                                                                                              


                                                        Table 11.--Bering Sea and Aleutian Islands Management Area Retainable Percentages                                                       
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                                                                                                                    Bycatch species \1\                                                         
                                                          --------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                      Aggregate                 
                                                           Pollock  Pacific    Atka    Arrow-  Yellowfin    Other    Rock   Flathead  Greenland  Sable-   Aggregated    Forage    Squid   Other 
                                                                      cod    mackerel   tooth     sole    flatfish   sole     sole      turbot    fish     rockfish    fish \3\          species
-------------------------------------------------------------------------------------------------------------------------------------------------------------\2\--------------------------------
                    Basis Species \1\                                                                                                                                                           
Pollock..................................................   \4\ na       20       20       35        20        20       20       20          1        1          5          20        2       20
Pacific cod..............................................       20       na       20       35        20        20       20       20          1        1          5          20        2       20
Atka mackerel............................................       20       20       na       35        20        20       20       20          1        1          5          20        2       20
Arrowtooth...............................................        0        0        0       na         0         0        0        0          0        0          0           0        2        0
Yellowfin sole...........................................       20       20       20       35        na        35       35       35          1        1          5          20        2       20
Other flatfish...........................................       20       20       20       35        35        na       35       35          1        1          5          20        2       20
Rock sole................................................       20       20       20       35        35        35       na       35          1        1          5          20        2       20
Flathead sole............................................       20       20       20       35        35        35       35       na         35       15         15          20        2       20
Greenland turbot.........................................       20       20       20       35        20        20       20       20         na       15         15          20        2       20
Sablefish................................................       20       20       20       35        20        20       20       20         35       na         15          20        2       20
Other rockfish...........................................       20       20       20       35        20        20       20       20         35       15         15          20        2       20
Other red rockfish-BS....................................       20       20       20       35        20        20       20       20         35       15         15          20        2       20
Pacific Ocean perch......................................       20       20       20       35        20        20       20       20         35       15         15          20        2       20
Sharpchin/ Northern-AI...................................       20       20       20       35        20        20       20       20         35       15         15          20        2       20
Shortraker/ Rougheye-AI..................................       20       20       20       35        20        20       20       20         35       15         15          20        2       20
Squid....................................................       20       20       20       35        20        20       20       20          1        1          5      \3\ na        2       20
Other species............................................       20       20       20       35        20        20       20       20          1        1          5          20        2   \3\ na
Aggregated amount non-groundfish species.................       20       20       20       35        20        20       20       20          1        1          5          20        2      20 
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\1\ For definition of species, see Table 1 of the Bering Sea and Aleutian Islands groundfish specifications.                                                                                    
\2\ Aggregated rockfish of the genera Sebastes and Sebastolobus.                                                                                                                                
\3\ Forage fish are defined at Sec.  679.20(i)(1).                                                                                                                                              
\4\ na = not applicable.                                                                                                                                                                        

[FR Doc. 97-32473 Filed 12-11-97; 8:45 am]
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