[Federal Register Volume 63, Number 11 (Friday, January 16, 1998)]
[Proposed Rules]
[Pages 2654-2656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1155]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 971231319-7319-01; I.D. 112697A]
RIN 0648-AK09


Fisheries of the Exclusive Economic Zone Off Alaska; Maximum 
Retainable Bycatch Percentages

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 a regulatory amendment to separate shortraker 
rockfish and rougheye rockfish (SR/RE) from the aggregated rockfish 
bycatch species group and reduce maximum retainable bycatch (MRB) 
percentages for SR/RE in the Aleutian Islands Subarea (AI) groundfish 
fisheries. This action is necessary to slow the harvest rate of SR/RE 
thereby reducing the potential for overfishing. This action is intended 
to further the objectives of the Fishery Management Plan for the 
Groundfish Fishery of the Bering Sea and Aleutian Islands (FMP).

DATES: Comments must be received at the following address by February 
17, 1998.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802, Attn: Lori Gravel or delivered to the 
Federal Building, 709 West 9th Street, Juneau, AK. Copies of the 
Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for 
this action may be obtained from the same address or by calling the 
Alaska Region, NMFS, at 907-586-7228.

FOR FURTHER INFORMATION CONTACT: Alan Kinsolving, 907-586-7228.

SUPPLEMENTARY INFORMATION: Fishing for groundfish by U.S. vessels in 
the exclusive economic zone of the Bering Sea and Aleutian Islands 
management area (BSAI) is managed by NMFS according to the FMP. The FMP 
was prepared by the North Pacific Fishery Management Council (Council) 
under authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Fishing by U.S. vessels is 
governed by regulations implementing the FMP at subpart H of 50 CFR 
part 600 and 50 CFR part 679.
    Regulations at 50 CFR 679.20(e) establish MRB percentages for 
groundfish species or species groups that are closed to directed 
fishing. The MRB amount is calculated as a percentage of the species on 
bycatch status relative to the amount of other species retained onboard 
the vessel that are open for directed fishing. MRB percentages serve as 
a management tool to slow down the harvest rates of bycatch species by 
limiting the amount that can be retained on board a vessel. By not 
placing the bycatch species on ``prohibited'' status, thereby 
prohibiting all retention, MRB's also serve to minimize regulatory 
discard of bycatch species when they are taken incidental to other 
directed fisheries. MRB percentages reflect a balance between the need 
to slow harvest rates while at the same time, minimizing the potential 
for undesirable discard. Although MRB percentages limit the incentive 
to target on a bycatch species, fishermen can ``top off'' their 
retained catch with these species up to the MRB amount by deliberately 
targeting the bycatch species.
    At its June 1997 meeting, the Council requested that NMFS initiate 
a regulatory amendment to reduce the MRB percentages for SR/RE to 
reduce harvest rates of SR/RE in the groundfish fisheries, thereby 
reducing the potential for overfishing and minimizing industry 
incentives to top off retained catch with SR/RE. Based on the analysis 
presented to the Council at its September 1997 meeting, the Council 
recommended that SR/RE be separated from the aggregated rockfish 
bycatch species group, and that MRB percentages for SR/RE in the AI be 
reduced to 7 percent relative to deep-water complex species (primarily 
POP) and to 2 percent relative to shallow-water complex species 
(primarily Atka mackerel). The MRB percentage relative to arrowtooth 
flounder would remain at 0 percent. Further justification for these MRB 
adjustments is discussed below.

Separation of SR/RE From Aggregated Rockfish

    MRB percentages are established for aggregate rockfish species that 
are closed to directed fishing. Rockfish species were aggregated 
because of concerns that separate MRB percentages for each rockfish TAC 
category would increase the overall amount of rockfish that could be 
retained and increase incentives to vessel operators to ``top off'' 
their retained catch of target species with rockfish. As part of the 
aggregate rockfish MRB, the combined amounts of rockfish on bycatch 
status must not exceed specified percentages of other retained species 
that are open to directed fishing. These percentages are 15 percent 
relative to deep-water complex species (other rockfish species, 
sablefish, Greenland turbot, and flathead sole) and 5 percent relative 
to shallow-water complex species (Atka mackerel, pollock, Pacific cod, 
yellowfin sole, rock sole, ``other flatfish'', squid, and other 
species).
    SR/RE are highly valued, but amounts available to the commercial 
fisheries are limited by a relatively small TAC amount that is fully 
needed to support bycatch needs in other groundfish fisheries. As a 
result, the directed fishery for SR/RE typically is closed at the 
beginning of the fishing year. Nonetheless, bycatch amounts of SR/RE 
can exceed TAC and approach the overfishing level. In 1997, the SR/RE 
bycatch in the Pacific ocean perch (POP) and Atka mackerel trawl 
fisheries (778 mt and 162 mt, respectively) exceeded the acceptable 
biological catch and caused overfishing concerns. This resulted in the 
closure of these and other trawl fisheries in the AI, as well as the 
hook-and-line gear fisheries for Pacific cod and Greenland turbot. 
Although closure of the individual fishing quota (IFQ) fisheries for AI 
sablefish and halibut was a possibility, SR/RE bycatch did not reach 
the overfishing level and those fisheries remained open.
    Based on the discussion above, NMFS proposes to remove SR/RE from 
the aggregated rockfish bycatch species group and establish an SR/RE 
bycatch species group for the AI.

Reduction of the SR/RE MRB Percentages

    The majority of SR/RE bycatch is taken in the POP and Atka mackerel 
fisheries. Based on data reported by the industry since 1995, the 
amount of retained SR/RE bycatch in the POP fishery has ranged from 4.5 
to 5.7 percent. During the same time period, the retained amount of SR/
RE in the Atka mackerel fishery relative to other retained catch has 
ranged from 0.08 to 0.2 percent.
    Analyses of 1995-1996 observer data from observed hauls in the AI 
Atka mackerel and POP fisheries indicate that most SR/RE bycatch is 
taken in the minority of hauls. In the Atka mackerel fishery during 
1995 and 1996, only 2 percent of observed hauls had bycatch

[[Page 2655]]

rates higher than 2 percent, but those hauls were responsible for 50 
percent of the observed SR/RE bycatch. In the POP fishery during 1995, 
only 10 percent of the observed hauls exceeded a bycatch rate of 7 
percent but these hauls were responsible for 50 percent of the SR/RE 
bycatch. In the 1996 POP fishery, 29 percent of the observed hauls 
exceeded a bycatch rate of 7 percent, but were responsible for 78 
percent of the SR/RE bycatch.
    To the extent that these high-bycatch hauls represent topping off, 
a reduction in MRB percentages would limit the incentive to do so and 
reduce the risk of approaching the overfishing level for SR/RE stocks. 
At the same time, the proposed MRB percentages would be at a level that 
is unlikely to increase regulatory discards.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
would not have a significant impact on a substantial number of small 
entities. NMFS prepared a regulatory impact review (RIR) that describes 
the impact this proposed rule, if adopted, would have on small 
entities.

    The Small Business Administration has defined all fish-
harvesting or hatchery businesses that are independently owned and 
operated, not dominant in their field of operation, with annual 
receipts not in excess of $3,000,000 as small businesses. 
Additionally, seafood processors with 500 employees or fewer, 
wholesale industry members with 100 employees or fewer, not-for-
profit enterprises, and government jurisdictions with a population 
of 50,000 or less are considered small entities. NMFS has determined 
that a ``substantial number'' of small entities would generally be 
20 percent of the total universe of small entities affected by the 
regulation. A regulation would have a ``significant economic 
impact'' on these small entities if it reduced annual gross revenues 
by more than 5 percent, increased total costs of production by more 
than 5 percent, resulted in compliance costs for small entities that 
are at least 10 percent higher than compliance costs as a percent of 
sales for large entities, or would be likely to cause approximately 
2 percent of the affected small business to go out of business. NMFS 
assumes that catcher vessels participating in the Alaska groundfish 
fisheries are ``small entities'' for purposes of the Regulatory 
Flexibility Act (RFA).
    In 1996, 213 vessels participated in the Aleutian Islands 
groundfish fisheries all of which would be affected by this rule. Of 
these, 140 vessels (66 percent) were catcher vessels and would be 
considered small entities by NMFS. One hundred percent of these 
small entities would be affected by this rule. Thus, this rule 
affects a ``substantial number of small entities.''
    This rule could have a variety of different impacts on different 
entities depending on each small entity's previous fishing history. 
For vessels that have never landed SR/RE, this rule's impacts would 
be strictly beneficial in that the only impacts would be that there 
would be less likelihood of other fisheries in which those vessels 
operate being closed due to excessive SR/RE bycatch. For entities 
that have historically landed SR/RE, this rule's impact could vary 
as well. NMFS' data indicate that most vessels typically harvest SR/
RE at a rate substantially below this rule's new MRB of 7 percent. 
Vessels in the POP fishery typically harvest SR/RE at a rate ranging 
from 4.5 to 5.7 percent. Vessels in the Atka mackerel fishery 
typically have SR/RE bycatch rates of .08 to 0.2 percent. Forty-
eight small entities landed SR/RE in 1996. For those vessels whose 
SR/RE bycatch rates are already under 7 percent, this rule's impacts 
will be only positive as well. However, it is possible that one or 
more of these 48 small entities landed SR/RE at a rate greater than 
7 percent. For any such vessel, this rule could result in an 
economic loss.
    In 1996, small entities took only 0.2 percent of the total SR/RE 
that was landed. Using an assumed exvessel price of $1.10 per pound, 
the total value of the 1996 SR/RE retained catch is estimated at 
$1.8 million, of which less than $3,600 was taken by the 48 small 
entities (34 percent of the total universe of small entities, a 
substantial number). Data is not available on how many, if any, 
small entities have historically landed SR/RE at a bycatch rate 
greater than 7 percent. However, if NMFS assumes that all 48 small 
entities retained bycatch at the maximum rate of 14 percent, then 
the most any vessel could stand to lose as a result of this rule 
would be 50 percent (because the new maximum retainable level, 7 
percent, is one-half of the current maximum retainable level, 14 
percent) of $3,600, divided by 48: $37.50 per vessel. If only 20 
percent of the affected small entities (28 vessels) landed SR/RE at 
a rate higher than 7 percent, the greatest economic loss they could 
be expected to suffer would be $64.30. If only 10 percent of the 
small entities landed over 7 percent of SR/RE, the most these 
vessels could expect to lose as a result of this rule would be $129 
each. Based on the total value of the SR/RE landed by small 
entities, NMFS can conclude that very few, if any, small entities 
would be likely to experience a reduction in gross annual income of 
greater than 5 percent or be forced to go out of business because of 
this rule. In addition, any losses would be offset for these vessels 
to the extent that other lucrative fisheries such as POP and Sitka 
mackerel would not risk early closure due to excessive SR/RE 
bycatch.
    Also, data indicate that this rule is not likely to result in 
compliance costs proportionally higher for small entities than for 
large entities. Annual compliance costs are not likely to increase 
production costs by more than 5 percent. Compliance costs as a 
percent of sales for small entities are not likely to be greater 
than 10 percent of sales for large entities.
    Thus although NMFS is not able to ascertain the exact number of 
small entities that would experience negative economic impact as a 
result of this rule, NMFS is able to conclude that substantially 
fewer than 20 percent of the affected small entities would 
experience any negative impact at all, and that in no case would 
this rule result in a significant impact on a substantial number of 
small entities.

As a result, a regulatory flexibility analysis was not prepared. A copy 
of the EA/RIR is available from NMFS (See ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: January 12, 1998.
David L. Evans,
Deputy 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 part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq. and 3631 et seq.

    2. In part 679, Table 11 is revised to read as follows:

[[Page 2656]]


                                                        Table 11.--Bering Sea and Aleutian Islands Management Area Retainable Percentages                                                       
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                                                                                                               Bycatch Species \1\                                                              
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                                                                                                                                                       Shortraker                               
                                                Pollock  Pacific    Atka    Arrowtooth  Yellowfin    Other   Rocksole  Flathead  Greenland  Sablefish   rougheye    Aggregated   Squid    Other 
                                                           cod    mackerel                 sole    flatfish              sole      turbot                 (AI)       rockfish            species
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Basis species:                                                                                                                                                                                  
    Pollock...................................     <SUP>3 na       20        20         35         20         20        20        20         1          1           2           5         20       20
    Pacific cod...............................       20     <SUP>3 na        20         35         20         20        20        20         1          1           2           5         20       20
    Atka mackerel.............................       20       20      <SUP>3 na         35         20         20        20        20         1          1           2           5         20       20
    Arrowtooth................................        0        0         0       <SUP>3 na          0          0         0         0         0          0           0           0          0        0
    Yellowfin sole............................       20       20        20         35       <SUP>3 na         35        35        35         1          1           2           5         20       20
    Other flatfish............................       20       20        20         35         35       <SUP>3 na        35        35         1          1           2           5         20       20
    Rocksole..................................       20       20        20         35         35         35      <SUP>3 na        35         1          1           2           5         20       20
    Flathead sole.............................       20       20        20         35         35         35        35      <SUP>3 na        35         15           7          15         20       20
    Greenland turbot..........................       20       20        20         35         20         20        20        20      <SUP>3 na         15           7          15         20       20
    Sablefish.................................       20       20        20         35         20         20        20        20        35       <SUP>3 na           7          15         20       20
    Other rockfish............................       20       20        20         35         20         20        20        20        35         15           7          15         20       20
    Other red rockfish-BS.....................       20       20        20         35         20         20        20        20        35         15           7          15         20       20
    Pacific ocean perch.......................       20       20        20         35         20         20        20        20        35         15           7          15         20       20
    Sharpchin/Northern-AI.....................       20       20        20         35         20         20        20        20        35         15           7          15         20       20
    Shortraker/Rougheye-AI....................       20       20        20         35         20         20        20        20        35         15        <SUP>3 na          15         20       20
    Squid.....................................       20       20        20         35         20         20        20        20         1          1           2           5       <SUP>3 na       20
    Other species.............................       20       20        20         35         20         20        20        20         1          1           2           5         20     <SUP>3 na
    Aggregated amount non-groundfish species..       20       20        20         35         20         20        20        20         1          1           2           5         20      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 except in the Aleutian Islands Subarea where shortraker and rougheye rockfish is a separate category.                           
\3\ na=not applicable.                                                                                                                                                                          

[FR Doc. 98-1155 Filed 1-15-98; 8:45 am]
BILLING CODE 3510-22-P