[Federal Register Volume 69, Number 225 (Tuesday, November 23, 2004)]
[Rules and Regulations]
[Pages 68095-68103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25960]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 040106005-4316-02; I.D. 121603C]
RIN 0648 AP73


Fisheries of the Exclusive Economic Zone Off Alaska; Full 
Retention of Demersal Shelf Rockfish in the Southeast Outside District 
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 that requires the operator of a 
federally permitted catcher vessel using hook-and-line or jig gear in 
the Southeast Outside District (SEO) of the Gulf of Alaska (GOA) to 
retain and land all demersal shelf rockfish (DSR) caught while fishing 
for groundfish or for Pacific halibut under the Individual Fishing 
Quota (IFQ) program. This action is necessary to improve estimates of 
fishing mortality of DSR. This final rule is intended to further the 
goals and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and the Fishery Management Plan 
for Groundfish of the Gulf of Alaska (FMP).

DATES: Effective December 23, 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 
may be obtained from the Sustainable Fisheries Division, Alaska Region, 
NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall, by 
calling the Alaska Region, NMFS, at 907-586-7228, or from the Alaska 
Region, NMFS website at www.fakr.noaa.gov.
    Send comments on collection-of-information requirements to NMFS, 
Alaska Region, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Washington D.C. 20503 (Attn: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Tom Pearson, 907-481-1780 or 
[email protected].

SUPPLEMENTARY INFORMATION: The groundfish fisheries in the exclusive 
economic zone (EEZ) of the GOA are managed under the FMP. The FMP was 
prepared by the North Pacific Fishery Management Council (Council) 
under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et 
seq. Regulations governing U.S. fisheries and implementing the FMP 
appear at 50 CFR parts 600 and 679.

Background

    One of the species groups managed under the FMP is DSR, an 
assemblage of seven rockfish species: Canary rockfish (Sebastes 
pinniger), China rockfish (S. nebulosus), copper rockfish (S. 
caurinus), quillback rockfish (S. maliger), rosethorn rockfish (S. 
helvomaculatus), tiger rockfish (S. nigrocinctus), and yelloweye 
rockfish (S. ruberrimus).
    The State of Alaska (State) manages all fisheries occurring within 
State waters, i.e., within three nautical miles of Alaska's coastline. 
The FMP defers to the State some management responsibility for the DSR 
fishery in the SEO, subject to Council and Federal oversight. The State 
management regime must be consistent with the goals of the FMP. 
Commercial harvests of DSR are managed within the total allowable catch 
(TAC) specified annually by NMFS in consultation with the Council. NMFS 
published the DSR TAC for 2004 in the Federal Register on February 27, 
2004 (69 FR 9261).
    Existing State regulations for DSR establish fishing seasons (5 AAC 
28.111(a)) and gear restrictions (5 AAC 28.130), set harvest guidelines 
for directed DSR fishing based on the TAC (5 AAC 28.160), and limit the 
amount of DSR that can be retained as bait (5 AAC 28.190). Also, the 
State has a full retention requirement for DSR caught in State waters 
(5 AAC 28.171). The Council and NMFS establish the annual TAC for DSR 
(see 50 CFR 679.20), regulate the catch of prohibited species in the 
DSR directed fishery (see 50 CFR 679.21), set recordkeeping and 
reporting requirements (see 50 CFR 679.5), and impose a maximum 
retention requirement for DSR caught incidentally in Federal fisheries 
(see 50 CFR 679.20(d)-(e); Table 10 to part 679).

Need for Action

    The existing management background and explanation of the need for 
this action were described in the preamble to the proposed rule 
published in the Federal Register on January 21, 2004 (69 FR 2875). The 
Council and NMFS have designed this action to achieve the following 
four objectives:
    1. Improve data collection on the incidental catch of DSR in the 
halibut and groundfish hook-and-line fisheries

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in the SEO to more accurately estimate DSR fishing mortality, improve 
DSR stock assessments, and evaluate whether current maximum retainable 
amounts (MRAs) are the appropriate levels for DSR in the SEO;
    2. Minimize waste to the extent practicable;
    3. Avoid increasing incentives either to target DSR or to discard 
DSR that is caught in excess of the amount that can legally be sold for 
profit; and
    4. Maintain a consistent approach within State and Federal 
regulations that govern the retention and disposition of DSR.
    The preamble to the proposed rule (January 21, 2004, 69 FR 2875) 
contains additional explanation as to how this action will achieve 
these objectives.

Elements of this Rule

    This rule has two main provisions that are added as paragraph (j) 
to Sec.  679.20. The first provision addresses retention and landing 
requirements. The operator of a federally-permitted catcher vessel 
using hook-and-line or jig gear is required to retain and land all DSR 
that is caught while fishing for groundfish or IFQ halibut in the SEO. 
Landed fish must be reported under Federal and State regulations.
    The second provision addresses disposal of retained amounts of DSR. 
Under this rule, a fisherman is limited to selling an amount of 
retained DSR that is no more than 10 percent of the aggregate round 
weight equivalent of IFQ halibut and groundfish, other than IFQ 
sablefish, that he or she retained onboard the vessel. For IFQ 
sablefish, a fisherman is limited to selling an amount of retained DSR 
that is no more than 1 percent of the aggregate round weight equivalent 
of IFQ sablefish he or she retained onboard the vessel. Fishermen could 
use amounts of retained DSR in excess of these sale limits for other 
purposes, including personal consumption or donation, but amounts of 
DSR in excess of the sale limits are prohibited from entering commerce 
through sale, barter, or trade.
    Additionally, the MRA table for the GOA groundfish fisheries (Table 
10 to 50 CFR part 679) is amended to remove the DSR MRA for catcher 
vessels in the SEO. A footnote is added to the DSR entry cross 
referencing the requirements specified in Sec.  679.20(j).

Response to Comments

    NMFS solicited public comments on the proposed rule (January 21, 
2004, 69 FR 2875) through February 20, 2004. One letter containing six 
separate comments was received during this comment period. The comments 
are summarized and responded to below.
    Comment 1: NMFS is overemphasizing the collection of fisheries 
information and neglecting the value of marine sanctuaries to re-
establish fish populations. No marine sanctuaries have been created 
which should be an immediate first priority.
    Response: The primary purpose of this regulatory amendment is not 
to re-establish DSR populations, but to improve information on the 
incidental catch of these rockfish species while not increasing 
incentives to either target or discard them. NMFS has no data that 
indicate DSR is overfished or that overfishing is occurring, hence, no 
need is apparent to re-establish DSR populations. In addition, areas of 
the GOA have been closed to fishing for conservation purposes, such as 
the Sitka Pinnacles Marine Reserve. This and other closed areas are 
specified in the groundfish regulations at Sec.  679.22(b). The January 
2004 draft environmental impact statement (EIS) for essential fish 
habitat discusses the effects of fishing on sensitive habitat features 
and evaluates a range of options for minimizing adverse effects, such 
as closing areas of rockfish habitat to bottom trawling. Further 
information on the draft EIS may be found at the NMFS Alaska Region 
website at www.fakr.noaa.gov.
    Comment 2: Days at sea should be cut by 50 percent this year, and 
cut by 10 percent each year thereafter. It is time to prevent 
overfishing that is obviously going on.
    Response: NMFS has identified no overfished stocks in the SEO 
District, or in the GOA as a whole, and has seen no evidence of 
overfishing of groundfish in this area. A reduction in days at sea is a 
management tool that has been used in other areas of the United States. 
In Alaska, however, NMFS has found that strict adherence to managing 
harvests at or below TAC levels makes the use of such a management tool 
unnecessary.
    Comment 3: The use of hook-and-line gear to target Pacific halibut 
should be prohibited. Enforcement is practically non-existent. When 
fishermen are found in violation of the halibut fishery regulations, 
their fishing privileges should be permanently revoked.
    Response: As part of an international agreement between the U.S. 
and Canada, hook-and-line gear is the only gear type authorized for use 
in the commercial harvest of halibut. Prohibiting its use would, in 
effect, close the commercial fishery for halibut. Enforcement of the 
halibut fishing regulations is conducted by NMFS Office of Enforcement 
and the U.S. Coast Guard, and compliance with these regulations is 
considered acceptable. The Office of Enforcement examines each 
violation of the fisheries regulations on a case by case basis. 
Penalties for violations can range from a written warning to the 
revocation of fishing privileges, forfeiture of fishing vessels, fines, 
and imprisonment.
    Comment 4: NMFS, to the detriment of the American public, is too 
slow to react to problems. NMFS has taken no action to address issues 
raised since 1996 and nothing has been done about overfishing issues 
and anti-environmental actions.
    Response: The groundfish fisheries in the GOA and off Alaska 
generally are among the best managed and most sustainable fisheries in 
the world. None of the groundfish stocks off Alaska are overfished or 
experiencing rates of harvest that are causing overfishing. Working 
closely with the Council since 1996, NMFS has implemented more than 25 
amendments to the FMP which have led to improvements in the 
conservation and management of the GOA groundfish fisheries. In 
considering any FMP or regulatory change, the Council and NMFS 
carefully consider a broad range of alternatives to address biological, 
environmental, and economic concerns. Preparation of these analyses and 
receiving public comment on them may take a period of months or years, 
but this is done to assure that fishery management programs are well 
justified and in compliance with all applicable law.
    Comment 5: Fishery quotas should be cut by 50 percent this year and 
by 10 percent each year thereafter. Too many vessels are allowed to 
fish; government agencies act as if fisheries resources are infinite, 
when they are not.
    Response: Fishery quotas or TACs are based upon the best scientific 
information available which is reviewed annually by the Council, its 
committees and NMFS. The Council often sets TACs at levels below the 
Acceptable Biological Catch (ABC) levels in response to social, 
economic, and environmental concerns. The establishment of TACs on an 
annual basis is implicit recognition that fisheries resources are not 
infinite. Additionally, the Council has recommended and NMFS has 
implemented several programs to reduce the number of vessels 
participating in the groundfish fisheries of Alaska, including the 
groundfish and crab License Limitation Program, the pollock fishing co-
operatives under the American Fisheries Act, and the IFQ program for 
the halibut and sablefish fisheries. Development of management

[[Page 68097]]

programs to rationalize fisheries or provide market-based incentives to 
reduce excessive fishing capital currently is underway in the Bering 
Sea crab fisheries and the GOA groundfish fisheries.
    Comment 6: Once DSR are caught, they should be consumed. Markets 
could be found. The best ways to save fish stocks are to reduce quotas 
and to reduce fishing vessel days at sea. Fishermen found in violation 
of fishery regulations should have their vessels confiscated and 
fishing privileges permanently revoked.
    Response: This final rule will require an operator of a federally 
permitted catcher vessel using hook-and-line or jig gear in the SEO to 
retain and land all DSR caught while fishing for groundfish or for 
Pacific halibut under the IFQ program in the SEO. Amounts of DSR 
species landed that are in excess of the maximum amount that may be 
sold may not enter commerce, but may be retained for personal 
consumption or donation to charity. Responses to concerns about 
conservation of fish stocks are given in the responses to comments 2 
and 5. See the response to comment 3 regarding fisheries enforcement.

Changes from the Proposed Rule

    No substantive changes are made in this final rule from the 
proposed rule. The headings of paragraphs at Sec.  679.20(j)(2)(i), 
(j)(2)(ii), and (j)(2)(iii) are removed, however, to simplify the 
regulatory text.
    To reflect the changes made by Amendment 63 to the FMP, Table 10 in 
the final rule is changed from Table 10 in the proposed rule. Amendment 
63 separated skates from the ``other species'' category to the target 
species category to allow for management of skates as a separate target 
species. The final rule for Amendment 63 was published May 12, 2004 (69 
FR 26313). Because the proposed rule for DSR retention (January 21, 
2004, 69 FR 2875) was published before the final rule for Amendment 63, 
the proposed rule for DSR did not include the changes to Table 10 that 
became effective with the final rule for Amendment 63. To ensure this 
final rule for DSR reflects changes made to Table 10 by the final rule 
for Amendment 63, Table 10 in the DSR final rule is changed from the 
DSR proposed rule to include the separation of skates from the ``other 
species'' category.
    A typographical error in Table 10 is also corrected by this final 
rule. A ``na9'' is added to the cell at the intersection of the 
sablefish column and row. This addition shows that the incidental catch 
of sablefish in the sablefish directed fishery is not applicable.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA which incorporates the IRFA and a summary of 
the analyses completed to support the action. Copies of these analyses 
are 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 the Rule

    A description of the need for and objectives of this action is 
contained in the preamble to the proposed rule published in the Federal 
Register on January 21, 2004 (69 FR 2875), and in the preamble of this 
final rule.

Summary of Significant Issues Raised in Public Comment

    No comments were received specifically on the IRFA. Several 
comments were received on the proposed rule that were largely 
irrelevant to the action, and none focused on the potential economic 
impacts of the action.

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

    The directly regulated entities are those vessels taking DSR as 
incidental catch in halibut and groundfish fisheries in Federal waters 
of the SEO district and the processors buying the DSR from them. NMFS 
estimates that 423 vessels participated in these fisheries in 2000. 
Most of these vessels were less than 60 feet (18.3 m) in length, 
fishing with hook-and-line gear and jig gear. Average gross revenues 
for these vessels from the Alaskan halibut and groundfish fisheries 
were about $262,000. Average gross revenues from all fisheries for 
these entities are undoubtedly higher, because these vessels 
participate in other fisheries in Alaska. In the years from 1996 to 
2001, between 17 and 26 plants bought groundfish in Southeast Alaska. 
In 2000, the average gross revenues for these plants were about $12 
million. NMFS estimates that these fishing and processing operations 
were all ``small entities'' within the meaning of the Regulatory 
Flexibility Act.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This rule will impose no new recordkeeping requirements on 
regulated entities. NMFS has not been able to identify any relevant 
Federal rules that may duplicate, overlap, or conflict with the 
preferred alternative.

Steps Taken to Minimize Economic Impacts on Small Entities

    The FRFA evaluated four alternatives: (1) the status quo, (2) full 
retention allowing all retained DSR to enter the stream of commerce, 
(3) full retention prohibiting certain amounts of DSR from entering the 
stream of commerce, and (4) use of an observer program. Alternative 3 
is the preferred alternative. Alternative 1 imposes no adverse impacts 
on small entities, but fails to advance the action objectives of 
providing new information on DSR, reducing DSR wastage, and maintaining 
consistency between State and Federal regulations. Alternative 2 may be 
less costly than Alternative 3 in that fishermen could allow processors 
to sell the excess DSR and relinquish the proceeds to the State. 
However, regulation of the disposition of the proceeds from the sale of 
DSR under Alternative 2 appears to exceed the authority granted to NMFS 
under the Magnuson-Stevens Act. Alternative 3, the preferred 
alternative, is discussed in detail in the preamble to the proposed 
rule and summarized in this final rule. Under Alternative 4, fishermen 
face additional costs for observer coverage, including travel and 
logistical expenses for observers, and an additional cost of about 
$330/day for 30 percent of days at sea. This alternative would provide 
new information on the status of DSR stocks, but would not reduce DSR 
waste or reduce the inconsistency between State and Federal 
regulations. Using observers for the DSR incidental catch fishery might 
become more feasible in the future in the context of a comprehensive 
restructuring of the observer program that would include funding for 
the observers so that the entire cost did not fall on fishermen.
    The Council considered but rejected several other alternatives 
because they did not appear to be effective solutions to the stated 
goals. Those mentioned in the EA include: (1) open the directed DSR 
fishery during halibut IFQ seasons and require full retention, (2) 
defer all management of DSR to the State, and (3) implement an IFQ 
fishery for DSR. The EA also discussed the option of an exempted 
fishing permit (EFP) conducted in order to obtain bycatch data. 
However, although such a program might allow more flexibility in 
design, it would depend on voluntary participation, and would therefore 
not enable the State to obtain a full census.

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    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) that have been approved by the 
Office of Management and Budget (OMB). These collections are provided 
below by OMB control number:
    OMB No. 0648-0206 Public reporting burden is estimated to average 
21 minutes for a Federal Fisheries Permit application and 20 minutes 
for a Federal Processor Permit application.
    OMB No. 0648-0213 This collection contains the recordkeeping and 
reporting forms and logbooks in which species, including DSR, are 
recorded and reported. Total public reporting burden for this family of 
forms is estimated at 32,329 hours. This estimate covers all forms of 
logbooks, and is not necessarily indicative of the burden associated 
with those to whom this rule applies. No measurable increase in burden 
is associated with this final rule because activity under this final 
rule is included in the existing collection.
    The estimated response times shown include the time to review 
instructions, search existing data sources, gather and maintain the 
data needed, and complete and review the collection of information. 
Send comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS (see ADDRESSES) and by e-mail to [email protected], or fax to 
202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

Small Entity Compliance Guide

    Affected commercial fishermen will be in compliance with this rule 
if they retain all DSR they catch incidental to fishing for other 
groundfish and Pacific halibut. Further, these fishermen may not sell 
their incidental harvest of DSR if it is in excess of 10 percent of the 
aggregate round weight equivalent of IFQ halibut and groundfish 
species, other than sablefish, that are landed during the same fishing 
trip, or if it is in excess of 1 percent of the aggregate round weight 
equivalent of IFQ sablefish that are landed during the same fishing 
trip. Copies of the final rule are available from NMFS (see ADDRESSES) 
and at the following website: http:/www.fakr.noaa.gov.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: November 18, 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.  679.20, paragraph (j) is added to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (j) Full retention of Demersal Shelf Rockfish (DSR) in the 
Southeast Outside District of the GOA (SEO)--(1) Retention and landing 
requirements. The operator of a catcher vessel that is required to have 
a Federal fisheries permit, or that harvests IFQ halibut with hook and 
line or jig gear, must retain and land all DSR that is caught while 
fishing for groundfish or IFQ halibut in the SEO.
    (2) Disposal of DSR when closed to directed fishing. When DSR is 
closed to directed fishing in the SEO, the operator of a catcher vessel 
that is required to have a Federal fisheries permit under Sec.  679.4 
(b), or the manager of a shoreside processor that is required to have a 
Federal processor permit under Sec.  679.4(f), must dispose of DSR 
retained and landed in accordance with paragraph (j)(1) of this section 
as follows:
    (i) A person may sell, barter, or trade a round weight equivalent 
amount of DSR that is less than or equal to 10 percent of the aggregate 
round weight equivalent of IFQ halibut and groundfish species, other 
than sablefish, that are landed during the same fishing trip.
    (ii) A person may sell, barter, or trade a round weight equivalent 
amount of DSR that is less than or equal to 1 percent of the aggregate 
round weight equivalent of IFQ sablefish that are landed during the 
same fishing trip.
    (iii) Amounts of DSR retained by catcher vessels under paragraph 
(j)(1) of this section that are in excess of the limits specified in 
paragraphs (j)(2)(i) and (ii) may be put to any use, including but not 
limited to personal consumption or donation, but must not enter 
commerce through sale, barter, or trade.

0
3. In 50 CFR part 679, Table 10 is revised as follows:
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[FR Doc. 04-25960 Filed 11-22-04; 8:45 am]
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