Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish of the Bering Sea and Aleutian Islands Area; Prohibited Species Catch Limit for Chionoecetes opilio

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.

* * * * *

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

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