Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations 66829

Dated: December 16, 1997.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 97–33300 Filed 12–17–97; 3:35 pm]

BILLING CODE 3510–22–F

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.

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.
66830 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations

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 § 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 § 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 MagnusonStevens 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

§ 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
Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations 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 § 679.2, the definitions of ‘‘C.

Opilio Bycatch Limitation Zone’’ and

‘‘U.S.-Russian Boundary’’ are added in

alphabetical order to read as follows:

§ 679.2 Definitions

* * * * *

C. Opilio Bycatch Limitation Zone

(COBLZ) (see § 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 § 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:

§ 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°30’ N.

lat. that is west of a line connecting the

following coordinates in the order

listed:

56°30’ N. lat., 165°00’ W. long.

58°00’ N. lat., 165°00’ W. long.

59°30’ N. lat., 170°00’ W. long.

and north along 170°00’ W. long. to its

intersection with the U.S.-Russian

Boundary.

* * * * *

[FR Doc. 97–33302 Filed 12–19–97; 8:45 am]

BILLING CODE 3510–22–F