[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.
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[FR Doc. 97-33302 Filed 12-19-97; 8:45 am]
BILLING CODE 3510-22-F