[Federal Register Volume 69, Number 92 (Wednesday, May 12, 2004)]
[Rules and Regulations]
[Pages 26313-26320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10783]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 031218322-4137-02; I.D. 111903A]
RIN 0648-AR73


Fisheries of the Exclusive Economic Zone Off Alaska; Skates 
Management in the Groundfish Fisheries of the Gulf of Alaska

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 63 to the 
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). 
Amendment 63 moves skates from the ``other species'' list to the 
``target species'' list in the FMP. By listing skates as a target 
species, management of a directed fishery for skates in the Gulf of 
Alaska (GOA) is improved. The final rule revises the definition of 
``other species'' and revises the listings for skates and ``other 
species'' to allow for the management of incidental catch of skates in 
groundfish fisheries and for groundfish in the skates directed fishery. 
This action is necessary to reduce the potential for overfishing 
skates. This action is intended to promote the goals and objectives of 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), the FMP, and other applicable laws.

DATES: Effective June 11, 2004.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), and the 
Final Regulatory Flexibility Analysis (FRFA) prepared for this action, 
as well as the Other Species Considerations for the Gulf of Alaska in 
the November 1999 GOA Stock Assessment and Fishery Evaluation (SAFE) 
report may be obtained from NMFS, Alaska Region, P.O. Box 21668, 
Juneau, AK 99802, Attn: Lori Durall.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the Exclusive 
Economic Zone of the GOA are managed 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.

Background

    The Council adopted Amendment 63 in October 2003, to prevent 
overfishing of skate species. Amendment 63 moves skates from the 
``other species'' list to the ``target species'' list in the FMP. The 
Notice of Availability for Amendment 63 was published in the Federal 
Register for a 60-day public review and comment period that ended 
February 2, 2004 (68 FR 67390, December 2, 2003). The proposed rule for 
this action was published in the Federal Register on January 6, 2004 
(69 FR 614). The comment period for the proposed rule ended February 
20, 2004. The Secretary of Commerce approved the FMP amendment on 
February 27, 2004.
    In December 2003, the Council recommended proposed harvest 
specifications for skates in the GOA. These harvest specifications were 
published in the Federal Register on March 4, 2004 (69 FR 10190), with 
a 15-day comment period ending March 19, 2004. Harvest specifications 
establishing overfishing levels (OFLs), acceptable biological catch 
(ABC), and total allowable catch (TAC) amounts for skates will allow 
management of the directed fishery for skates, reducing the potential 
for overfishing of skate species and meeting the conservation 
objectives of the Magnuson-Stevens Act.
    This final rule will facilitate incidental catch management by 
clarifying the maximum retainable amounts (MRAs) of groundfish in the 
skate directed fishery and the MRAs for skates in other groundfish 
directed fisheries. This action revises Table 10 of 50 CFR part 679 to 
separate skates from the ``other species'' complex and to establish a 
separate listing of MRAs for skates. The listing of species groups 
under footnote 7 to Table 10 for the ``other species'' complex is 
revised to remove skates from the listing. Footnote 11 to Table 10 is 
added to the MRAs column and row for skates to identify the managed 
skate species and the reporting codes. These changes are necessary to 
clarify the retention limits of skates incidentally caught in other 
groundfish directed fisheries and the retention limits of other 
groundfish taken incidentally in the directed fishery for skates. No 
changes are made to the MRA that apply to skates or to other groundfish 
from the MRAs that apply to the ``other species'' complex.
    The definition of ``other species'' in the regulations is revised 
to reference 50 CFR 679.20(e) for Tables 10 and 11 instead of 50 CFR 
679.20(c), which does not apply to Tables 10 and 11.

Comments and Responses

    Two letters of comment were received regarding Amendment 63. The 
letters contained seven separate comments which are summarized and 
responded to below.
    Comment 1. Reduce the TAC by 50 percent this year and an additional 
10 percent each year, thereafter.
    Response. NMFS assumes this is a recommendation to set TAC at 50 
percent of the ABC level. Amendment 63 does not set annual TACs for 
skates, rather it removes skates from the ``other species'' complex in 
the GOA and authorizes the Council to recommend OFLs, ABCs, TACs, and 
other management measures for skates as part of the annual harvest 
specifications process for groundfish in the GOA. In a separate action, 
NMFS has published proposed 2004 harvest specifications and associated 
management measures for skates in the GOA (69 FR 10190, March 4, 2004) 
based on Council recommendations made in December 2003. The Council 
recommended and NMFS proposed that the combined TACs for all skates in 
the GOA in 2004 be a total of 6,993 metric tons (mt) (86 percent of the 
combined ABC amounts). Comments on these proposed specifications were 
invited through March 19, 2004.
    TAC amounts in the GOA are established at or below the ABC amounts 
for groundfish species with reductions from the ABC dependent on 
socioeconomic and ecosystem concerns. The ABCs are developed by the 
Groundfish Plan Team based on conservative estimates of biomass, 
depending on the amount of information available for a species. The 
ABCs are reviewed by the Council's Scientific and Statistical Committee 
(SSC) and TACs are recommended by the Council's Advisory Panel (AP) and 
the Council. No socioeconomic or ecosystem concerns have been brought 
forward indicating the need for a reduction in TAC of 50 percent in 
2004, and 10 percent each year, thereafter. For

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further discussion of the harvest specifications for skates, see the 
response to Comment 5 below.
    Comment 2. Establish an extensive system of no take marine reserves 
to prevent overfishing, which is detrimental to the American public.
    Response. The creation of marine reserves is outside the scope of 
Amendment 63. The concept of establishing marine reserves is explored 
in the draft environmental impact statement (EIS) for essential fish 
habitat (EFH) dated January, 2004. Further information on the draft EIS 
may be found at the NMFS Alaska Region website at www.fakr.noaa.gov. 
Comments on the draft EIS were accepted through April 15, 2004 (69 FR 
2593, January 16, 2004). In April 2004, the Council received a report 
from its Groundfish Plan Teams regarding 23 proposals for designating 
Habitat Areas of Particular Concern. Several of these proposals 
recommended the creation of no-take marine reserves around such 
uncommon features as high relief coral gardens and sea mounts. NMFS 
also reopened the comment period for national EFH Guidelines through 
April 26, 2004 (69 FR 86156, February 25, 2004). Preventing overfishing 
of skates is best accomplished by establishing separate harvest 
management for skates. Information supporting the creation of marine 
reserves for the protection of skates is not available at this time.
    Comment 3. Environmental interests should be better represented in 
the regional fishery management councils.
    Response. Amendment 63 does not address membership of the regional 
fishery management councils. The regional fishery management councils 
were established by the Magnuson-Stevens Act, which specifies the 
qualifications of members and the procedures for appointing members to 
the councils. The number of voting members varies (7-19) by region. The 
majority of voting members in each region are appointed by the 
Secretary of Commerce from a list of nominees submitted by the governor 
of each constituent state. Changing the voting membership of a regional 
fishery management council should be done through petition to the 
applicable constituent state governor.
    Comment 4. Adoption of Amendment 63 is strongly supported to enable 
NMFS to prevent the overfishing of skates in the GOA through more 
species-specific and area-specific management. Based on the sensitive 
life history of skates (big skates, Raja binoculata, and longnose 
skates, Raja rhina, in particular) which includes slow growth, late 
maturity, long life, and low fecundity, we urge application of the 
precautionary approach in all aspects of managing these vulnerable 
species.
    Response. Amendment 63 separates skates from the ``other species'' 
complex in the GOA and authorizes the Council to set OFL, ABC, and TAC 
levels, as well as other management measures, including species-
specific and area-specific management as part of the annual groundfish 
harvest specification process. A precautionary approach is used in 
developing the OFL and ABC amounts and in establishing how to manage 
the harvest of the TAC amounts for skates in the Western, Central, and 
Eastern GOA. The level of precaution of harvest management is dependent 
on the amount of information available and the potential impacts on 
other groundfish fisheries, as further explained in the response to 
comment 5.
    Comment 5. We urge NMFS to adopt the following management measures. 
(A) Prohibit directed fishing for, and retention of, big and longnose 
skates. At the very least, quotas for these species should be 
significantly reduced. (B) Immediately pursue management measures to 
reduce incidental catch of big and longnose skates. (C) Adopt the 
general framework of Option 3 in the EA prepared for this action (see 
ADDRESSES). (D) Do not increase the gulf-wide total ABC for skates 
given that management of skates should lead to reduced landings. (E) 
The proposed ABCs and OFLs would allow more skates to be caught in 2004 
than all ``other species,'' including skates, in previous years and 
should be reduced. (F) Cap skate harvest at or below recent levels 
(2003) until more robust estimates of skate stock conditions and ABC 
levels can be made.
    Response. All of the remarks in comment 5 are germane to the 
management measures NMFS proposed for the 2004 skate fisheries in the 
GOA.
    (A) Each option for the management of skates analyzed in the EA 
prepared for this action contained two suboptions: set TACs at the ABC 
levels or lower levels sufficient to meet anticipated incidental catch 
needs in other directed fisheries during the fishing year, or set TACs 
at ABC levels. The first suboption would have the effect of prohibiting 
directed fishing for skates throughout the year. The second suboption 
would allow NMFS to establish a directed fishing allowance for skates 
after deducting anticipated incidental catch needs. In either case, 
retention of skates would be prohibited once the TACs are reached. The 
Council's recommended TACs would allow for a modest directed fishery of 
about 1,000 mt in each of two specified skate fisheries. When this 
directed fishing allowance is reached, skates would be placed on 
bycatch status, and directed fishing would be prohibited. For 2004, the 
Council recommended, and NMFS proposed (69 FR 10190, March 19, 2004) to 
set TACs for skates (totaling 6,996 mt) at or below the ABCs (totaling 
8,144 mt) which are substantially below the 2003 TAC for ``other 
species'' (11,260 mt) in the GOA.
    (B) The reduction of incidental catch is a goal of NMFS. By 
breaking skates out of the ``other species'' category in Table 10 of 50 
CFR part 679, the MRAs will be specific to skate species, allowing for 
better monitoring and enforcement of incidental catch of skates in the 
directed fisheries for groundfish and of groundfish in the directed 
fishery for skates. NMFS will continue to work with the Council and the 
fishing industry to develop ways, including management measures and 
fishing practices, to reduce bycatch for all groundfish species.
    (C) The GOA Groundfish Plan Team, the SSC, the AP, and the Council 
analyzed and considered Option 3 in the EA prepared for this action. 
Option 3 would create separate OFLs, ABCs, and TACs for three skate 
targets (big skates, longnose skates, and other skates) in the Eastern, 
Central, and Western management areas of the GOA. Of all the options 
considered, Option 3 would provide the most protection for skates in 
the GOA. In the GOA, one species is managed in this manner, Pacific 
ocean perch (POP). The rationale for the management of POP in this 
instance is that they are long lived, slow to mature, and could 
possibly be subject to localized depletion. This rationale also applies 
to skates. Option 3 is a viable method for management if enough 
information is available, and should continue to be considered in the 
future during the harvest specifications process.
    Based on the lack of information available, the SSC recommended a 
single gulf-wide OFL for skates in 2004, and a single ABC for skates 
gulf-wide, except for big and longnose skates in the Central GOA. The 
SSC believes that big and longnose skates in the Central GOA require 
additional protection because the 2003 directed fishery for skates 
preferentially targeted these two species and fishing effort was 
concentrated in the Central GOA. The Council and its committees also 
wished to avoid a situation where finely divided target fisheries often 
have small regional quotas which, if unexpectedly reached, could have 
detrimental impacts on other more fully developed fisheries. The Plan

[[Page 26315]]

Team recognized that most of the skates landed in the Central GOA were 
big skates and recommended a TAC for big and longnose skates in the 
Central GOA at the OFL for big skates (3,284 mt), which is below the 
ABC (4,435 mt) for big and longnose skates combined. The AP and Council 
concurred with the Plan Team's and SSC's recommendation, and it was 
incorporated into the proposed 2004 GOA skate harvest specifications 
published March 19, 2004 (69 FR 10190). The big and longnose skate 
fisheries will be managed to prevent the combined TAC level from being 
exceeded. This should prevent the big skates' OFL from being exceeded.
    (D) The ABC for skates gulf-wide is not being increased. Rather 
this is the first time an ABC for skates in the GOA is being 
established. The proposed skates' gulf-wide ABCs (8,144 mt) and TACs 
(6,993 mt) are substantially lower than the 2003 TAC for ``other 
species'' in the GOA (11,260 mt). The conservative directed fishing 
allowances (DFA) resulting from the TACs will lead to lower harvests of 
skates in 2004 than in 2003.
    (E) While the 2004 TAC for big and longnose skates in the Central 
GOA is higher than the actual 2003 catch, this does not mean that 
catches will increase. The commenter does not take into account that 
NMFS now will be able to set a DFA for skates that is far lower than 
what would have been possible if skates were managed as part of the 
``other species'' assemblage. Catches of skates in the GOA in 2004 
likely will be lower than 2003 because NMFS now will be able to limit 
the amount harvested in directed skate fisheries at a much lower level 
than when skates where managed together with ``other species.''
    (F) For the reasons discussed above, skate landings in the GOA in 
2004 are expected to be lower than 2003 levels.
    Comment 6. Reduce the TAC for the ``other species'' complex by 45 
percent, once skates are removed from this complex.
    Response. NMFS recognizes that with the removal of skates from the 
``other species'' complex, the TAC for the ``other species'' complex 
will increase. The TAC for the ``other species'' complex is required by 
the FMP to be 5 percent of the combined TACs for groundfish species in 
the GOA. The skates TACs will now be added into the combined TACs, 
resulting in a larger TAC for the ``other species'' complex. Any 
changes to how the TAC is established for the ``other species'' complex 
would require an additional FMP amendment.
    The Council has started work through its Target/Nontarget Committee 
and ad hoc group on how species should be identified, grouped, and 
managed based on available information. The committee is exploring 
factors necessary to support a directed fishery for a species, 
including preparation of stock assessments before a directed fishery is 
allowed to develop. Preparation of stock assessments for the remaining 
species in the ``other species'' complex (sharks, sculpins, octopi, and 
squid) likely would result in ABC recommendations totaling 
approximately 6,500 mt based on the most recent stock assessment (Other 
Species Considerations for the Gulf of Alaska in the November 1999 GOA 
SAFE report, see ADDRESSES). This would be a reduction of approximately 
50 percent from the proposed 2004 ``other species'' complex TAC of 
12,942 mt.
    Comment 7. NMFS should consider skates and sharks as priority 
species in terms of research, assessment, and outreach projects.
    Response. This comment is outside the scope of Amendment 63 and the 
proposed 2004 GOA harvest specifications. However, sharks and skates 
are priority species for improved assessments. In this regard, NMFS has 
recently: (1) Prepared skate identification manuals for use by 
observers, (2) trained at sea and shoreside observers in the catch and 
landing composition of skates in the groundfish fisheries, (3) sampled 
shoreside deliveries of skates for catch composition with respect to 
species, sex, and size, (4) collected age information to help determine 
the age structure of skate stocks, (5) amended recordkeeping and 
reporting requirements to record landings and discards of sharks and 
skates at the species or genus level, facilitating the inseason 
monitoring of the skates' TACs, and (6) encouraged fishermen, when 
discarding skates, to employ careful release methods like those 
required for halibut to reduce bycatch mortality.
    No changes were made from the proposed rule in the final rule.

Classification

    The Regional Administrator determined that Amendment 63 is 
necessary for the conservation and management of the GOA groundfish 
fishery 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 the 
purposes of Executive Order 12866.
    NMFS prepared a FRFA which incorporates the IRFA and a summary of 
the analyses completed to support the action. A copy of these analyses 
is available from NMFS (see ADDRESSES). The FRFA did not reveal any 
Federal rules that duplicate, overlap, or conflict with the action. The 
following summarizes the FRFA.

Need for and Objectives of This Action

    The need and objectives for this action are described above in the 
preamble to this final rule.

Issues Raised by Public Comments on the IRFA

    The proposed rule was published in the Federal Register on January 
6, 2004 (69 FR 614). An IRFA was prepared for the proposed rule, and 
described in the Classification section of the preamble to that rule. 
The public comment period ended on February 20, 2004. No public 
comments were received in response to the IRFA or on the economic 
impacts of the rule.

Number and Description of Small Entities Affected by the Rule

    The entities directly regulated by this action would be the fishing 
operations harvesting species in the ``other species'' complex in the 
GOA, using hook-and-line gear or trawls. These vessels may be targeting 
skates (the only species in the ``other species'' category currently 
fished as a target), or they may be harvesting skates and other species 
in the ``other species'' category incidentally to other targeted 
fishing operations; (e.g., fishing for Pacific cod or shallow water 
flatfish). Because any hook-and-line or trawl operation in the GOA may 
harvest the ``other species'' complex, the universe of potentially 
affected operations includes all GOA hook-and-line and trawl vessels.
    In 2001, the universe of potentially affected vessels included 670 
hook-and-line vessels and 138 trawlers. Of these, 650 were small hook-
and-line catcher vessels, 15 were small hook-and-line catcher/
processors, 120 were small trawl catcher vessels, and 4 were small 
trawl catcher/processors. The remaining 19 vessels are large vessels. 
This size determination is based on operation revenues from groundfish 
fishing in Alaska. Moreover, the data are not available to take account 
of affiliations between fishing operations and associated processors, 
or other associated fishing operations. For these reasons, these counts 
may overstate the numbers of small entities potentially directly 
regulated by the action. Average Alaska groundfish revenues, in 2001, 
for these small entities were $100,000 for

[[Page 26316]]

hook-and-line catcher vessels, $1.82 million for hook-and-line catcher/
processors, $370,000 for trawl catcher vessels, and $1.80 million for 
trawl catcher/processors.
    The directed skates fishery that emerged in 2003 is described in 
Section 1.0 of the EA (see ADDRESSES). Seventy-seven hook-and-line 
catcher vessels, 53 trawl catcher vessels, 13 hook-and-line catcher/
processors, and 10 trawl catcher/processors took part in the fishery in 
2003, producing an estimated ex-vessel gross revenue of about $1.7 
million. This suggests average revenues for these vessels were about 
$11,000.

Alternatives to the Proposed Action

    The Council considered the alternative of taking no action. This 
would have left skates in the ``other species'' category. The ``other 
species'' category includes additional species such as sculpin, shark, 
squid, and octopus. The ``other species'' TAC is set equal to 5 percent 
of the combined TACs for all target species in the GOA. In 2004, the 
``other species'' TAC is 12,592 mt. This amount far exceeded the 
biologically desirable skate harvest in 2004. The 2004 OFL for all 
skate species together was projected to be 10,859 mt. The ``other 
species'' TAC also is higher than the OFLs would have been for 
individual species or species groups. Nevertheless, fishermen would 
have been able to harvest skates, or any of the individual skate 
species or species groups up to the ``other species'' TAC. This 
alternative was rejected because of the need for improved management 
controls to protect skate species, in light of the serious concerns 
about the health of the skate resource under a continuing directed 
fishery without sufficient management controls.

Recordkeeping and Reporting Requirements

    Nothing in the action would result in changes in reporting or 
recordkeeping requirements.

Small Entity Compliance Guide

    This action revises 50 CFR part 679, Table 10, which is used to 
determine the MRAs for skates in the directed fisheries for other 
groundfish and for other groundfish in the directed fishery for skates. 
This action does not require any additional compliance from small 
entities. This action gives effect to separate inseason actions which 
may be taken to limit the harvest of skates. 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: May 5, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set out 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 part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et 
seq.; 16 U.S.C. 1540(f); Pub. L. 105-277, Title II of Division C; 
Pub L. 106-31, Sec. 3027; and Pub L. 106-554, Sec. 209.

0
2. In Sec.  679.2, the definition ``Other species'' is revised to read 
as follows:


Sec.  679.2  Definitions.

* * * * *
    Other species is a category that consists of groundfish species in 
each management area that are not specified as target species (see 
Tables 10 and 11 to this part pursuant to Sec.  679.20(e)).
* * * * *
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3. Table 10 to part 679 is revised to read as follows:
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[FR Doc. 04-10783 Filed 5-11-03; 8:45 am]
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