[Federal Register Volume 68, Number 169 (Tuesday, September 2, 2003)]
[Rules and Regulations]
[Pages 52142-52144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22342]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030320066-3192-02; I.D. 022103D]
RIN 0648-AQ78


Fisheries of the Exclusive Economic Zone Off Alaska; Removal of 
Full Retention and Utilization Requirements for Rock Sole and Yellowfin 
Sole

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues regulatory changes to implement the partial 
approval of Amendment 75 to the Fishery Management Plan for the 
Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP). 
As partially approved, this amendment eliminates all reference to the 
requirements for 100-percent retention and utilization of rock sole and 
yellowfin sole in the groundfish fisheries of the Bering Sea and 
Aleutian Islands Management Area (BSAI). This action is necessary to 
amend regulations to maintain consistency with the the Magnuson-Stevens 
Fishery Management and Conservation Act (Magnuson-Stevens Act), the 
FMP, and other applicable laws.

DATES: Effective on October 2, 2003.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained from NMFS, Alaska Region, P.O. Box 21668, 
Juneau, AK 99802-1668, Attn: Lori Durall, or by calling (907) 586-7228.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, NMFS, Alaska Region, 
907-586-8743 or [email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the 
exclusive economic zone of the BSAI under the FMP. The North Pacific 
Fishery Management Council (Council) prepared the FMP under the 
authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.). 
Regulations implementing the FMP appear at 50 CFR part 679. General 
regulations governing U.S. fisheries also appear at 50 CFR part 600.

Purpose and Need for Amendment 75

    The Sustainable Fisheries Act of 1996 (Public Law 104--297) 
effected numerous amendments to the Magnuson-Stevens Act, including the 
addition of a new National Standard 9. This standard requires that 
conservation and management measures, to the extent practicable, (A) 
minimize bycatch and, to the extent bycatch cannot be avoided, (B) 
minimize the mortality of such bycatch. In response to National 
Standard 9 the Council adopted a regulatory program in 1997 to reduce 
the amount of groundfish discards in the groundfish fisheries off 
Alaska. This program, known as the Improved Retention/Improved 
Utilization (IR/IU) Program, was adopted as Amendment 49 to the FMP. 
The IR/IU program requires that vessels fishing for groundfish in 
Alaska retain all pollock and Pacific cod beginning in 1998 when 
directed fishing for those species is open. Under Amendment 49, the IR/
IU program expanded on January 1, 2003, to include all rock sole and 
yellowfin sole in the BSAI (flatfish IR/IU).
    As the effective date of flatfish IR/IU approached, industry 
representatives testified to the Council that some sectors of the BSAI 
trawl fleet would not be able to accommodate full retention and 
utilization of rocksole and yellowfin sole due to insufficient markets 
and/or processing constraints and costs. Thus, flatfish IR/IU would 
force vessel owners to choose to no longer participate in the BSAI 
fisheries. In response, the Council initiated an analysis to assess 
these concerns and whether alternative management programs could be 
implemented by January 1, 2003, to reduce discard rates while still 
providing for historical participation in the BSAI fisheries.
    In October 2002, the Council concluded that while several 
alternative proposals under consideration showed

[[Page 52143]]

merit, they were not sufficiently developed and analyzed in a manner 
that would allow for implementation on January 1, 2003. Therefore, the 
Council adopted a preferred alternative for Amendment 75 to the FMP to 
delay implementing the 100-percent retention requirements for rock sole 
and yellowfin sole until June 1, 2004. The intent of this action was to 
provide the Council and industry with additional time to develop 
alternative regulatory proposals to reduce discard amounts.
    The Council submitted Amendment 75 for review by the Secretary of 
Commerce and a Notice of Availability of the FMP amendment was 
published in the Federal Register on February 28, 2003 (68 FR 9630). 
Comments on this proposed Amendment were invited through April 29, 
2003. The proposed rule was published on March 28, 2003 (68 FR 15144), 
and was followed by a notice of additional supplementary information on 
April 18, 2003 (68 FR 19182), to summarize additional information on 
the Initial Regulatory Flexibility Analysis (IRFA). Comments on the 
proposed rule and supplementary information were invited through May 
12, 2003. NMFS received 4 letters by the end of the comment periods on 
the proposed amendment and its implementing rule, all requesting an 
indefinite delay or removal of the flatfish IR/IU requirement for the 
BSAI groundfish fisheries. These comments are summarized and responded 
to in the Response to Comments section, below.
    A summary of the analysis on Amendment 75, including the Council's 
preferred alternative, was provided in the proposed rule (68 FR 15144, 
March 28, 2003) and the Notice of Availability of Supplemental 
Information (68 FR 19182 April 18, 2003). On May 29, 2003, the 
Secretary of Commerce partially approved the Council's preferred 
alternative for Amendment 75. In doing so, the Secretary continued the 
IR/IU program for pollock and Pacific cod, but delayed indefinitely the 
flatfish IR/IU program by removing reference to this program from the 
FMP. Full approval of the Council's preferred alternative would have 
been inconsistent with the Administrative Procedure Act, which requires 
that the administrative record for an action include an explanation of 
the rational connection between the analysis and decision. The 
administrative record for Amendment 75 shows that if flatfish IR/IU 
regulations were to be implemented after the 18-month delay date of 
June 2004, they would result in significant adverse economic impacts on 
some participants in the groundfish fisheries. However, the record for 
this action does not show how overall benefits outweigh the costs. 
Approval of Amendment 75 also would have resulted in significant 
adverse economic impacts that are inconsistent with the problem 
statement for Amendment 75, National Standard 7 and National Standard 
9. Thus, partial approval of Amendment 75 was necessary to provide 
sufficient opportunity for the Council to either develop a record for 
Amendment 75 or develop other options for refining the IR/IU program, 
without the immediate imposition of full retention of IR/IU flatfish 
species in the BSAI.

Elements of the Final Rule

    This final rule would remove regulatory requirements for retention 
and utilization of rock sole and yellowfin sole in the BSAI. No other 
regulatory actions are contained in this final rule.

Changes from the Proposed Rule to the Final Rule

    This final rule differs from the proposed rule in that it does not 
include a delay in the implementation of the IR/IU retention and 
utilization requirements for rock sole and yellowfin sole in the BSAI. 
Instead, regulatory provisions for flatfish IR/IU are removed. This 
change is necessary to conform regulations to the partial approval of 
Amendment 75.

Response to Comments

    The proposed rule to implement Amendment 75 was published on March 
28, 2003 (68 FR 15144), with comments invited through May 12, 2003. 
NMFS received 4 comment letters on the proposed rule, all of which 
address the adverse economic implications of the BSAI flatfish IR/IU 
program.
    Comment: NMFS should rescind the flatfish IR/IU program in the 
BSAI, or put it on indefinite hold, because a delay until June 2004 
will not provide sufficient time to implement alternative strategies to 
reduce discards of these species. Furthermore, significant progress 
already has been made voluntarily to reduce discards since 1997. The 
non-American Fisheries Act trawl catcher processor fleet alone has 
reduced yellowfin sole and rock sole discards by over 40 percent during 
the past 5 years.
    Response: As explained above, the Secretary has determined that the 
proposed delay of the flatfish IR/IU program was inconsistent with the 
Administrative Procedure Act and National Standards 7 and 9. Thus, the 
existing provisions for flatfish IR/IU in the BSAI were removed from 
the FMP and its implementing regulations.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) that described the economic impact of the proposed rule, if 
adopted, would have on small entities. A summary of the IRFA was 
included in the Notice of Availability of Supplementary Information (68 
FR 19182, April 18, 2003). The IRFA identified small and large entities 
that could be affected by the proposed rule and associated alternatives 
in the analysis. In Alternative 1 (the status quo) the imposition of a 
100 percent IR/IU flatfish retention standard for rock sole and 
yellowfin sole in the BSAI would decrease revenues of small vessels 
while having little impact on larger vessels. This reduction in 
revenues could cause some of the smaller sized head and gut trawl 
catcher/processor vessels to exit fisheries in which these species are 
caught. Alternative 2, which would have allowed some discards of 
flatfish species, was anticipated to have some economic and operational 
impacts on small entities, but also was deemed to be impossible to 
enforce. Alternative 3 would have delayed imposition of IR/IU flatfish 
rules for up to 3 years, with the expectation that some form of fishing 
cooperative system would ease the economic burden of IR/IU flatfish 
rules in the BSAI. Alternative 4 would have exempted selected fisheries 
from IR/IU flatfish regulations based upon historical flatfish discard 
rates, but this would not mitigate the immediate burden on small head 
and gut catcher/processor vessels. The Council's preferred alternative 
was a modification of Alternative 3 that proposed a delay of IR/IU 
flatfish regulations for 18 months to temporarily ease the economic 
burden of flatfish IR/IU but ultimately would impose the full economic 
burden, unless other mitigating regulatory actions were to be 
implemented before the date that IR/IU flatfish rules would be 
implemented. No comments were submitted in response to the IRFA.
    NMFS prepared a final regulatory flexibility analysis (FRFA) for 
the partial approval of Amendment 75 that contains the items specified 
in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the comments and 
responses to the proposed rule, and the analyses completed in support 
of this action. A copy of the IRFA is available from the Council (see 
ADDRESSES). The preamble

[[Page 52144]]

to the proposed rule included a detailed summary of the analyses 
contained in the IRFA, and that discussion is not repeated in its 
entirety here.

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action are contained in 
the preamble to the proposed rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    No public comments were received that related to the IRFA on this 
rule. Although 4 comments were received on the general economic impacts 
of the IR/IU program, these comments were not specific to the analyses 
contained in the IRFA. For a summary of the comments received, refer to 
the section above titled ``Comments and Responses.''

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    A description and estimate of the number of small entities to which 
the rule will apply is provided in the IRFA and IRFA summary contained 
in the Classification section of the proposed rule and in the notice of 
additional supplementary information and is not repeated here. The 
final rule has been modified from the proposed rule and the FRFA 
includes an analysis of the approved alternative that would permanently 
mitigate the impacts of flatfish IR/IU upon small entities by removing 
all reference to flatfish IR/IU in the BSAI FMP and implementing 
regulations. The number of small entities to which the rule will apply 
has not been affected by these changes.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    A description of projected reporting, recordkeeping, and other 
compliance requirements is provided in the IRFA and IRFA summary 
contained in the Classification section of the proposed rule and is not 
repeated here.

Steps Taken to Minimize Economic Impacts on Small Entities

    Environmental impacts of the alternatives, including the Council's 
preferred Alternative and the Approved alternative, are expected to be 
insignificant based on the information and assessments are contained in 
Chapter 2 of the EA/RIR/FRFA. The Council's preferred alternative, and 
alternatives 1 through 4, would not have fully mitigated the adverse 
economic effects of IR/IU rules for flatfish on small entities because 
neither the Council nor the Secretary could guarantee that mitigating 
actions would have relieved the costs of full retention of IR/IU 
flatfish species by June 2004. The partial approval action of May 2003, 
will allow the benefits of the economic activity associated with these 
fisheries to accrue to vessel operators, crew and fishing communities, 
until the Council chooses to implement new IR/IU policies. Furthermore, 
the partial approval action will provide Council, industry, and the 
managing agencies time to develop measures that may meet bycatch 
reduction needs, while allowing the industry to continue to provide 
fishery benefits to the nation. A copy of this analysis is available 
from NMFS (see ADDRESSES).

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. This 
paragraph serves as the small entity compliance guide. Small entities 
are not required to take any additional actions to comply with this 
action. This action does not require any additional compliance from 
small entities. Copies of this final rule are available from NMFS (see 
ADDRESSES) and at the following web site: http://www.fakr.noaa.gov/

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: August 26, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulation Programs, National Marine 
Fisheries Service.

0
For the reasons set forth in the preamble, 50 CFR part 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
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.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 
106-31, 113 Stat. 57.
Sec.  679.27 [Amended]

0
2. In Sec.  679.27, paragraphs (b)(3) and (b)(4) are removed and 
paragraph (b)(5) is redesignated as (b)(3).

[FR Doc. 03-22342 Filed 8-29-03; 8:45 am]
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