[Federal Register Volume 73, Number 228 (Tuesday, November 25, 2008)]
[Proposed Rules]
[Pages 71592-71597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28020]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 080103016-8417-01]
RIN 0648-AW40


Fisheries of the Exclusive Economic Zone Off Alaska; Revise 
Maximum Retainable Amounts of Groundfish Using Arrowtooth Flounder as a 
Basis Species in the Gulf of Alaska

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 revise the maximum 
retainable amounts (MRAs) of groundfish using arrowtooth flounder as a 
basis species in the Gulf of Alaska. This action would increase the 
MRAs from 0 percent to 20 percent for deep-water flatfish, rex sole, 
flathead sole, shallow-water flatfish, Atka mackerel, and skates; from 
0 percent to 5 percent for aggregated rockfish; and from 0 percent to 1 
percent for sablefish. The intended effect of this action is to reduce 
regulatory discards of otherwise marketable groundfish in the 
arrowtooth flounder fishery. This action is intended to promote the 
goals and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the Fishery Management Plan for Groundfish of the Gulf 
of Alaska, and other applicable law.

DATES: Comments must be received no later than December 26, 2008.

ADDRESSES: Send written comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian, Records Officer. You may submit comments, 
identified by ``RIN 0648-AW40'' by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9\th\ 
Street, Room 420A, Juneau, AK.
    All comments received are part of the public record and will be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments must be in Microsoft Word, Excel, WordPerfect, or Adobe 
portable document file (pdf) formats to be accepted.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this 
action are available from the NMFS Alaska Region at the address above 
or from the Alaska Region Web site at http://www.fakr.noaa.gov/sustainablefisheries.htm.

FOR FURTHER INFORMATION CONTACT: Tom Pearson, 907-481-1780.

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the groundfish fisheries in the exclusive economic 
zone in the Gulf of Alaska (GOA) under the Fishery Management Plan for 
Groundfish of the Gulf of Alaska (FMP). The North Pacific Fishery 
Management Council (Council) prepared the FMP under the authority of 
the Magnuson-Stevens Fishery Conservation and Management Act (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.
    Regulations at (679.20(e) establish maximum retainable amount (MRA) 
percentages for groundfish species and species groups. These MRA 
percentages establish the amount of a species closed to directed 
fishing that may be retained onboard a vessel, relative to the amounts 
of other groundfish open to directed fishing retained onboard the 
vessel. MRA percentages serve as a management tool to slow down the 
rate of harvest and reduce the incentive for targeting a species closed 
to directed fishing. MRAs also allow for retention of incidentally 
caught species instead of requiring regulatory discards of species 
closed to directed fishing. MRA percentages do not reflect a natural 
incidental catch rate, but rather, reflect a balance between the 
recognized need to slow harvest rates, minimize the potential for 
discards, and, in some cases, provide an increased opportunity to 
harvest available total allowable catch (TAC) through limited targeting 
activity.
    In 1994, and after it became apparent that several groundfish 
stocks as well as halibut were impacted, NMFS published an emergency 
interim rule to prohibit the use of arrowtooth flounder as a basis 
species for the purpose of retaining groundfish (59 FR 6222, February 
10, 1994). This action prevented exceeding the overfishing limit of 
Pacific ocean perch and thornyhead rockfish. Also, it prevented 
premature fishery closures due to reaching the halibut prohibited 
species catch (PSC) limit. At the time the emergency rule was 
published, several vessel operators were deliberately targeting 
arrowtooth flounder to provide a basis for the retention of highly 
valued groundfish species, such as sablefish, which were closed to 
directed fishing. After landing, the retained arrowtooth

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flounder was either discarded or made into fish meal. The prohibition 
was made permanent in 1995 (60 FR 40304, August 8, 1995).
    By 1995, a limited market for arrowtooth flounder had begun to 
develop. In 1997, the MRAs for pollock and Pacific cod using arrowtooth 
flounder as a basis species were increased from 0 to 5 percent to 
reduce regulatory discards without providing an incentive to 
intentionally target an MRA species that is closed to directed fishing 
(62 FR 11109, March 11, 1997). This action was successful in reducing 
discards required by regulation and reduced the number of violation 
notices issued by the Office of Enforcement for exceeding the MRAs of 
pollock and Pacific cod. Since 1997, the incidental catch of pollock 
and Pacific cod in the arrowtooth flounder fishery has not increased 
from previous average rates. In 2006, as part of Amendment 69 to the 
FMP, which revised the formula used to establish the TAC for the (other 
species( complex, the MRA for (other species( using arrowtooth flounder 
as a basis species was increased from 0 to 20 percent (71 FR 12626, 
March 13, 2006). This action was also taken to reduce discards required 
by regulation.
    In October 2006, the Council received a proposal from industry to 
increase the MRAs for several groundfish species using arrowtooth 
flounder as a basis species because arrowtooth flounder is now a viable 
target fishery. Effort by the trawl fleet to improve retention of 
groundfish species is constrained by the current MRAs. In addition, to 
support the increased catch of arrowtooth flounder, the annual TAC for 
arrowtooth flounder was increased from 5,000 mt to 8,000 mt in the 
Western GOA in 2001 and has remained at that level since then. The 
arrowtooth flounder TAC was increased from 25,000 mt to 30,000 mt in 
the Central GOA in 2007 and remained at that level in 2008. Total catch 
of arrowtooth flounder in the GOA, including both directed fishing and 
incidental catch in other groundfish fisheries, has increased from 
16,247 mt in 1997 to 25,340 mt in 2007. Over the same period the 
retention of arrowtooth flounder in all trawl fisheries has increased 
from 18 percent to 58 percent of the total catch of arrowtooth flounder 
in the GOA, an indication of a growing market for arrowtooth flounder. 
In the 2006 directed arrowtooth flounder fishery in the GOA, 82 percent 
of arrowtooth flounder catch was retained.
    The Council took final action in October 2007, and selected the 
industry's proposal as its preferred alternative. The proposed action 
would revise the GOA Retainable Percentages listed in Table 10 to part 
679 to increase the MRAs for selected groundfish species using 
arrowtooth flounder as a basis species. The MRAs for deep-water 
flatfish, rex sole, flathead sole, shallow-water flatfish, Atka 
mackerel, and skates would be increased from 0 percent to 20 percent; 
the MRA for aggregated rockfish would be increased from 0 percent to 5 
percent; and the MRA for sablefish would be increased from 0 percent to 
1 percent. The MRAs for pollock, Pacific cod, (other species,( and 
forage fish using arrowtooth flounder as a basis species would not be 
changed.
    The proposed MRAs are higher than the percentages of the groundfish 
catch from 2003 to 2006 associated with the directed arrowtooth 
flounder fishery for Atka mackerel, deep-water flatfish, flathead sole, 
rex sole, shallow-water flatfish, and skates, and lower for aggregated 
rockfish. Because the proposed MRAs are higher than the previously 
reported incidental catch amounts, this action would allow some 
increased catch of Atka mackerel, deep-water flatfish, flathead sole, 
rex sole, shallow-water flatfish, and rockfish without exceeding the 
TAC amounts established for these species.
    The draft Environmental Assessment prepared for this action 
concluded that the proposed increase of the MRAs for selected species 
of groundfish using arrowtooth as a basis species would not affect any 
groundfish stock or any other component of the physical or biological 
environment. Under this proposed action, the MRAs for groundfish in the 
arrowtooth flounder fishery would be increased from current levels and 
greater amounts of groundfish closed to directed fishing could be 
retained in the arrowtooth flounder fishery instead of discarded. 
However, even though the amounts of groundfish retained in the 
arrowtooth flounder fishery would increase, total removals of each 
species would still be within the TAC levels for each species and would 
be further constrained by halibut PSC limitations that often close 
directed fishing for groundfish by vessels using trawl gear. The 
impacts of the harvest strategies and resulting TAC amounts were 
analyzed in the 2007 Alaska Groundfish Harvest Final Specifications 
Environmental Impact Statement available at http://www.fakr.noaa.gov.
    The proposed rule would revise Sec.  679.20(f)(2) to remove the 
requirement that arrowtooth flounder may not be used as a basis species 
to calculate retainable amounts of other groundfish species.
    Minor editorial revisions would be made to Table 10 to part 679. 
The words ``shallow water'' and ``deep water'' would be revised to 
``shallow-water'' and ``deep-water'' to standardize the preferred 
spelling of these terms.
    In note 1 to Table 10, the term ``shortraker/rougheye'' (171) would 
be removed because NMFS no longer has a species category or code in 
Table 2a to part 679 for the combination of shortraker and rougheye 
rockfish.
    Note 10 to Table 10 lists the species included in the aggregated 
forage fish category. The word ``families'' in the parentheses 
following the term ``Aggregated forage fish'' would be replaced with 
the word ``taxa'' because all species of the order Euphausiacea (krill) 
also are included in the list of aggregated forage fish. The word taxa 
refers to more general groupings of similar organisms and includes 
taxonomic families and orders.

Classification

    Pursuant to section 304 (b)(1)(A) and 305 (d) of the Magnuson-
Stevens Act, the NMFS Assistant Administrator has determined that this 
proposed rule is consistent with the FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are contained at 
the beginning of this section in the preamble and in the SUMMARY 
section of the preamble. A copy of the EA/RIR/IRFA analysis is 
available from NMFS (see ADDRESSES).
    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, and have annual receipts less 
than $4.0 million as small businesses. In addition, 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 negative impact'' on these small entities if it reduced 
annual

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gross revenues by more than 5 percent, increased total costs of 
production by more than 5 percent or resulted in compliance costs for 
small entities by at least 10 percent compared with compliance costs as 
a percent of sales for large entities.
    The IRFA estimated that 18 trawl catcher vessels participating in 
the arrowtooth flounder fishery qualify as ``small entities'' for 
purposes of the Regulatory Flexibility Act. None of the catcher/
processors participating in the arrowtooth flounder fishery qualify as 
small entities.
    Three alternatives were analyzed for their impact. Alternative 1, 
the status quo or no action alternative, would leave the MRAs for 
groundfish in the arrowtooth flounder fishery unchanged from current 
levels, and would continue to require fishermen to discard otherwise 
marketable groundfish. Alternative 2, the Council(s preferred 
alternative brought forward as a proposal from the industry, would 
increase the MRAs for some species of groundfish in the arrowtooth 
flounder fishery in order to reduce discards of otherwise marketable 
fish without raising allocation concerns with respect to pollock, 
Pacific cod, rockfish, and sablefish. Alternative 3, developed by NMFS 
and Council staff, would increase the MRAs for groundfish species 
caught in the arrowtooth flounder fishery to levels estimated to cover 
incidental catch of these species. Under Alternative 3 the MRAs for 
deep-water flatfish (5 percent), rex sole (10 percent), flathead sole 
(15 percent), shallow-water flatfish (5 percent), Atka mackerel (5 
percent), and skates (10 percent) would be lower than the 20 percent 
proposed under Alternative 2. Alternatives 2 and 3 would provide an 
opportunity to retain additional, economically valuable groundfish 
species in the arrowtooth flounder directed fishery. This would be 
beneficial to the affected small entities. The benefits to small 
entities under Alternative 2, the preferred alternative, would be 
slightly greater than under Alternative 3. No negative impacts on small 
entities are associated with either Alternative 2 or 3.
    This proposed rule contains no additional collection-of-information 
requirements subject to review and approval by OMB under the Paperwork 
Reduction Act.
    The analysis did not reveal any Federal rules that duplicate, 
overlap, or conflict with the proposed action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: November 20, 2008.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, 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.; 3631 et seq.; 
Pub. L. 108-447.
    2. In Sec.  679.20, revise the first sentence of paragraph (f)(2) 
to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (f) * * *
    (2) Retainable amounts. Any groundfish species for which directed 
fishing is closed may not be used to calculate retainable amounts of 
other groundfish species. * * *
* * * * *
    3. Revise Table 10 to 50 CFR part 679 to read as follows:
BILLING CODE 3510-22-S

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[FR Doc. E8-28020 Filed 11-24-08; 8:45 am]
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