[Federal Register Volume 74, Number 29 (Friday, February 13, 2009)]
[Proposed Rules]
[Pages 7209-7214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3184]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070718366-7372-01]
RIN 0648-AV32


Fisheries of the Exclusive Economic Zone Off Alaska; Maximum 
Retainable Amounts for Non-American Fisheries Act Trawl Catcher/
Processors

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 to amend regulations to change the time at which 
the amount of retained groundfish must be calculated to comply with the 
maximum retainable amounts (MRAs) of selected groundfish species caught 
by trawl catcher/processors (C/Ps) that are not eligible under the 
American Fisheries Act (AFA) to participate in directed fishing for 
pollock. This proposed action would apply to MRAs for yellowfin sole, 
rock sole, flathead sole, ``other flatfish,'' arrowtooth flounder, 
Pacific cod, and Atka mackerel in the Bering Sea and Aleutian Islands 
management area (BSAI) and for Pacific ocean perch in the Aleutian 
Islands (AI). The proposed action is necessary to provide the non-AFA 
trawl C/Ps the opportunity to reduce discards and increase retention of 
these groundfish species. The proposed rule is intended to promote the 
goals and objectives of the Fishery Management Plan for Groundfish of 
the Bering Sea and Aleutian Islands Management Area (FMP).

DATES: Written comments must be received by March 16, 2009.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN 
0648-AV32'', 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 9th 
Street, Room 420A, Juneau, AK.
    All comments received are a part of the public record and will 
generally 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 will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this 
action may be obtained from the mailing address above or from the NMFS 
Alaska Region website at http://www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS at ADDRESSES above and by e-mail 
to [email protected], or fax to 202- 395(7285.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442, or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
in the BSAI under the FMP. The North Pacific Fishery Management Council 
(Council) prepared the FMP pursuant to the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 
et seq. Regulations implementing the FMP appear at 50 CFR part 679. 
General regulations that pertain to U.S. fisheries appear at subpart H 
of 50 CFR part 600.
    MRAs assist in limiting harvest of a species within its annual 
total allowable catch (TAC). Once the TAC for a species is reached, 
retention of that species becomes prohibited and all catch of that 
species must be discarded. Therefore, NMFS closes a species to directed 
fishing before the entire TAC is taken to leave sufficient amounts of 
the TAC available for incidental catch. A species-specific MRA is used 
to manage the amount of a species left for incidental catch.
    The MRA is the maximum weight of a species closed to directed 
fishing that may be retained onboard a vessel. MRAs are calculated as a 
percentage of the weight of catch of each species open to directed 
fishing that is retained onboard the vessel (the basis species). If the 
MRA for a species is 35 percent, then the percent of retained 
incidental species must be no more than 35 percent of the weight of 
basis species. For example, the MRA for rock sole caught in a directed 
fishery for yellowfin sole is 35 percent. If yellowfin sole is open to 
directed fishing (a basis species) and rock sole is closed to directed 
fishing, a vessel operator may retain rock sole in amounts up to 35 
percent of the round weight equivalent of yellowfin sole that is 
onboard the vessel at any point in time during a fishing trip. All 
catch of rock sole in excess of the MRA must be discarded. To calculate 
retained amounts for rock sole and yellowfin sole, the vessel operator 
would estimate the processed weight of rock sole and yellowfin sole for 
a trip, convert those processed amounts to round weight equivalent of 
retained catch, and compare that estimate of retained catch with the 35 
percent MRA for rock sole.
    MRAs are applied to all groundfish species in the BSAI to reduce 
fishing effort on specific species when catch is approaching an annual 
TAC. MRAs are the primary tool used by NMFS to reduce or slow the catch 
of species when directed fishing for that species is closed. Directed 
fishing is defined in 50 CFR part 679 as ``any fishing activity that 
results in the retention of an amount of a species or species group 
onboard a vessel that is greater than the MRA for that species or 
species group.( Table 11 to 50 CFR part 679 provides the list of 
incidental catch and basis species and the MRA of each incidental catch 
species as a percentage of each basis species.
    Current regulations at Sec.  679.20(e) require, with one exception, 
that the MRAs apply at any time during a fishing trip. This MRA 
accounting period is known as ``instantaneous,'' because the MRA may 
not be exceeded at any point in time during the fishing trip. The 
exception to this requirement, implemented in 2004 to reduce regulatory 
discards of pollock, allows the MRA for pollock retained by non-AFA 
vessels to apply at the end of each offload rather than at any time 
during

[[Page 7210]]

the trip. Regulatory discards of a species occur when regulations 
prohibit retention of some portion of the catch for a species that is 
closed to directed fishing.
    The amount and rate of groundfish discards resulting from the non-
AFA trawl C/P sector have been a continuing issue with the Council. 
Compared with other processing sectors participating in the groundfish 
fisheries of the BSAI, the Council concluded that these vessels 
consistently have had the highest groundfish discard (and lowest 
retention) amounts and rates. In 1995, the non-AFA trawl C/P sector 
retained 59 percent of all groundfish combined. The only other 
processor sector with a combined retention rate below 90 percent in 
1995 was the longline C/P sector at 84 percent. Groundfish retention 
rates of non-AFA trawl C/Ps have increased somewhat in recent years. 
For example, in 1999 the non-AFA trawl C/P sector had an overall 
groundfish retention rate of 67 percent. In 2005, the retention rate 
for the non-AFA trawl C/P sector improved to 75 percent, but was still 
lower than the longline C/P and AFA-trawl C/P sectors. In 2006 through 
2008, the non-AFA trawl C/P sector increased groundfish retention to 
between 77 and 78 percent of its total catch.
    In October 2005, the Council received a request from 
representatives of the non-AFA trawl C/P sector to increase opportunity 
to reduce regulatory discards by delaying the MRA accounting period to 
the time of offload of groundfish from a vessel. The requesters noted 
that substantial portions of groundfish discard in the BSAI are 
regulatory discards. Representatives for the non-AFA trawl C/P sector 
testified to the Council that increasing the interval for accounting of 
an MRA would allow more time to accumulate species open to directed 
fishing to use as a basis for retaining catch of species closed to 
directed fishing. Testimony from the sector also suggested that under 
some conditions this additional time to accumulate basis species may 
reduce the amount of regulatory discards, particularly in situations 
when relatively high rates of incidentally caught species were taken 
early in a fishing trip.
    In December 2006, the Council recommended this proposed action to 
allow non-AFA trawl C/Ps to apply MRAs at the end of the fishing trip 
for yellowfin sole, rock sole, flathead sole, ``other flatfish,'' 
arrowtooth flounder, Atka mackerel, and Pacific cod in the BSAI, and 
for Pacific ocean perch in the AI. The Council also recommended that a 
new fishing trip begin any time a non-AFA trawl C/P enters or leaves a 
Steller sea lion protection area closed to directed fishing for Atka 
mackerel or Pacific cod in the BSAI, and that the MRA accounting 
interval for those two species in Steller sea lion protection areas 
continue to apply at any time during a fishing trip.
    NMFS proposes to amend MRA accounting for non-AFA trawl C/Ps to 
increase the interval of time MRAs would apply to the groundfish 
species recommended by the Council. The proposal would also amend the 
definition of a fishing trip and retain the current MRA accounting 
interval for Atka mackerel and Pacific cod in Steller sea lion 
protection areas, as recommended by the Council.
    The purpose of this proposed action is to provide additional 
flexibility for the non-AFA trawl C/P sector to increase retention and 
decrease regulatory discards of certain groundfish species by extending 
the interval of time required to comply with MRAs, except inside 
Steller sea lion protection areas where current MRA accounting at any 
time during a fishing trip would continue to apply. This action is 
needed because of the less selective nature of the fisheries that the 
non-AFA trawl C/P sector participates in and its longstanding 
difficulties increasing its retained catch of groundfish. Other BSAI 
groundfish sectors can more easily catch higher proportions of a single 
species or are able to deliver mixed landings of groundfish to 
shoreside plants that are able to more efficiently utilize groundfish 
catch by processing a wider variety of fish products, including fish 
meal. This proposed action is consistent with National Standard 9 of 
the Magnuson-Stevens Act because it provides an opportunity for the 
non-AFA trawl C/Ps to minimize bycatch.
    To select groundfish species that were compatible with the purpose 
and need for this action, the Council reviewed the historical data on 
catch, TACs, Acceptable Biological Catch, and other biological and 
population data for a number of groundfish species. Each of the species 
selected by the Council was intended to provide the non-AFA trawl C/P 
sector additional opportunities to increase groundfish retention and 
avoid additional incentives for targeting a species closed to directed 
fishing, as well as not complicate the enforcement of MRAs. Two species 
that Council were considered for this action but rejected because they 
were not consistent with the Council's intent to increase retention of 
groundfish were Pacific Ocean perch in the BS and Greenland turbot.
    If these proposed MRA accounting revisions were to become effective 
in combination with the remaining MRA regulations at 50 CFR part 679, 
three possible MRA accounting methods, shown in the table below, could 
apply to selected groundfish species listed in Table 11 to 50 CFR part 
679. As shown in the table below, MRA accounting for a selected species 
in the BSAI could (1) apply any time during a fishing trip, (2) apply 
at the end of a fishing trip, (3) apply at offload, or (4) not apply 
(no MRA calculation required). Except for species caught outside a 
Steller sea lion protection area (listed in footnote \a\ to the table 
below), or species caught inside a Steller sea lion protection area 
(listed in footnote \b\ to the table below), MRA accounting for species 
listed in Table 11 to CFR part 679 would not be changed by the proposed 
action and MRAs for these species would continue to apply to non-AFA 
trawl C/Ps at any time during a fishing trip. Further, the MRA 
percentages in Table 11 to 50 CFR part 679 would continue to be used in 
any calculation of MRAs and no changes to these percentages would be 
made under this proposed rule.
    Amendment 80 C/Ps, non-Amendment 80 C/Ps, and MRA proposed 
revisions. Requirements for applying and calculating MRAs to each 
groundfish species, shown in the table below, would depend upon the 
Amendment 80 (September 14, 2007; 72 FR 52668) access privileges 
granted to a non-AFA trawl C/P vessel, previous MRA regulations 
applicable to groundfish species, groundfish species selected by the 
Council for this proposed action, and location of retained groundfish 
product in the BSAI, as specified in this proposed action. Regulations 
establishing the Amendment 80 program affect how MRAs would apply to 
BSAI groundfish species, based upon whether a vessel is included in an 
Amendment 80 cooperative listed at Sec.  679.2 or in the Amendment 80 
limited access fishery listed at Sec.  679.2 (see table below). 
Amendment 80 allocates several Bering Sea and Aleutian Islands (BSAI) 
non-pollock trawl groundfish species among trawl fishery sectors. The 
table below also depicts how MRA accounting would vary by existing MRA 
regulations for pollock and many other groundfish species that would 
not be revised by this proposal. MRA accounting would be affected by 
extending the interval of time required to comply with MRAs for 
yellowfin sole, flathead sole, rock sole, Pacific ocean perch in the 
AI, Pacific cod, Atka mackerel, ``other flatfish,'' and arrowtooth 
flounder (see table below).

[[Page 7211]]

    As explained in detail below, the location of retained catch of 
Atka mackerel and Pacific cod would impact MRA accounting, depending 
upon whether these species are retained inside or outside a designated 
Steller sea lion protection area. For example, if a non-AFA trawl C/P, 
in an Amendment 80 cooperative completed one fishing trip inside a 
Steller sea lion protection area and a second fishing trip outside a 
Steller sea lion protection area, two different MRA accounting 
intervals would apply to retention of Pacific cod, as long as a single 
haul did not occur on both sides of a Steller sea lion protection area. 
If Pacific cod was closed to directed fishing both inside and outside 
the Steller sea lion protection area, MRAs would apply at anytime (i.e. 
``instantaneously'') during that fishing trip inside the Steller sea 
lion protection area, and MRAs would apply at the end of a fishing trip 
outside the Steller sea lion protection area.

   Application (or calculation) of MRAs for the non-AFA trawl C/P sector, based on a vessels membership in an
 Amendment 80 cooperative and retention of groundfish inside or outside a Steller sea lion (SSL) protection area
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                                           Vessels in an Amendment 80          Vessels not in an Amendment 80
                                           cooperative, and retaining            cooperative, and retaining
                                                   groundfish                            groundfish
 Groundfish species listed in Table  ---------------------------------------------------------------------------
        11 to 50 CFR part 679             outside a           inside a          outside a           inside a
                                        designated SSL     designated SSL     designated SSL     designated SSL
                                       protection area,   protection area,   protection area,   protection area,
----------------------------------------------------------------------------------------------------------------
yellowfin sole flathead sole, rock                do not apply
 sole, AI POP
                                       apply at the end of a fishing trip
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``other flatfish''/arrowtooth          apply at the end of a fishing trip
 flounder
                                       apply at the end of a fishing trip
----------------------------------------------------------------------------------------------------------------
Pollock                                         apply at offload
                                                apply at offload
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Species listed in Table 11 to 50 CFR  apply at any time  apply at any time  apply at any time  Apply at any time
 part 679 except as noted              during a fishing   during a fishing   during a fishing   during a fishing
                                       trip except for    trip except for    trip except for    trip except for
                                       species noted      species noted      species noted      species noted
                                       \a\                \b\                \a\                \b\
----------------------------------------------------------------------------------------------------------------
Pacific cod                           do not apply       apply at any time  apply at the end   apply at any time
Atka mackerel                                             during a fishing   of a fishing       during a fishing
                                                          trip               trip               trip
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\a\Yellowfin sole, flathead sole, rock sole, pollock, ``other flatfish'', arrowtooth flounder, Pacific cod, Atka
  mackerel and, AI POP.
\b\Yellowfin sole, flathead sole, rock sole, pollock, ``other flatfish'', arrowtooth flounder, and AI POP.

    Regulations governing the application of MRAs at Sec.  679.20(e)(3) 
would be revised to add a new paragraph (e)(3)(iv) to specify that the 
calculation of MRAs by non-AFA trawl C/Ps for yellowfin sole, rock 
sole, flathead sole, Pacific ocean perch in the AI, ``other flatfish,'' 
and arrowtooth flounder, would apply at the end of a fishing trip. As 
shown in the table above, however, MRAs do not apply to yellowfin sole, 
rock sole, flathead sole and Pacific ocean perch in the AI for vessels 
in an Amendment 80 cooperative, because these fisheries are not closed 
to directed fishing for cooperative members under the Amendment 80 
program. Members of an Amendment 80 cooperative are prohibited from 
exceeding the catch amounts assigned to the Amendment 80 cooperative at 
Sec.  679.7(o)(4)(v). Therefore NMFS does not close the directed 
fishery for any Amendment 80 species (as defined at Sec.  679.2) to 
members of an Amendment 80 cooperative except closures to directed 
fishing for Atka mackerel and Pacific cod inside Steller sea lion 
protection areas apply to members of an Amendment 80 cooperative as 
well as all other C/Ps.
    This action would not impact MRA accounting for pollock retained in 
the BSAI, which would continue to be applied at offload for vessels 
regardless of whether they are a member of an Amendment 80 cooperative, 
in the Amendment 80 limited access fishery, or are retaining groundfish 
inside or outside a Steller sea lion protection area (see table above). 
The existing regulations for applying pollock MRAs are located at Sec.  
679.20(e)(3)(iii).
    MRA accounting revisions for Pacific Cod and Atka mackerel in SSL 
protection areas. A proposed paragraph (iv) would be added at Sec.  
679.20(e)(3) to specify how MRA accounting would apply to Pacific cod 
and Atka mackerel at the end of a fishing trip, except when inside a 
Steller sea lion protection area that is closed to directed fishing for 
these two species. In Steller sea lion protection areas closed to 
directed fishing, the current ``instantaneous'' MRA accounting interval 
would continue to apply at any time during a fishing trip to avoid any 
increase in catch of these species in the protection areas that are 
important to foraging Steller sea lions. Atka mackerel and Pacific cod 
are caught and retained or discarded by the non-AFA trawl C/P sector in 
these Steller sea lion protection areas. NMFS observer data show that 9 
percent of the Atka mackerel caught in the Aleutian Islands subarea 
(AI) by non-AFA trawl C/Ps are caught inside the Steller sea lion 
protection areas, and 97 percent of the Atka mackerel caught in the 
Bering Sea subarea (BS) by these vessels are caught inside the Steller 
sea lion protection areas. The Council determined that if it adopted 
the offload MRA accounting interval in Steller sea lion protection 
areas, Atka mackerel fishing effort in Steller sea lion protection 
areas could increase. At its August 2007 meeting, the Council affirmed 
that in its December 2006 recommendations, it had intended to maintain 
instantaneous MRA accounting for Pacific cod as well as Atka mackerel 
in both the BS and AI protection areas.
    To further reduce topping-off, the Council also recommended that a 
new fishing trip begin or end any time a non-AFA trawl C/P enters or 
leaves a Steller sea lion protection area that is closed to directed 
fishing for Atka mackerel or Pacific cod. Currently a fishing trip is 
triggered when a vessel enters or exits an area where a different 
directed fishing prohibition applies, including Steller sea lion 
protection areas,. However, when directed fishing for Pacific cod or 
Atka mackerel is closed both inside and outside a Steller sea lion 
protection area, entering or

[[Page 7212]]

exiting the Steller sea lion protection area does not trigger the start 
of a new fishing trip because the directed fishing prohibitions are the 
same. This allows vessels to retain Pacific cod or Atka mackerel caught 
inside a Steller sea lion protection area using target species (basis 
species) accumulated outside the Steller sea lion protection areas. 
Requiring that a new fishing trip start each time a vessel enters or 
leaves a Steller sea lion protection area, regardless of the fishery 
closures that exist outside the Steller sea lion protection areas, 
limits the potential to top-off and target Pacific cod or Atka mackerel 
inside the protection areas. In addition, the new fishing trip trigger 
would assist NMFS in monitoring the two methods of MRA accounting that 
would apply inside the Steller sea lion protection areas (at the end of 
the trip for some species and at any point in time for other species). 
To institute the Council recommendations, NMFS proposes to revise the 
definition of a fishing trip at Sec.  679.2 to add two new events that 
would trigger the end of a fishing trip for non-AFA trawl C/Ps. The 
proposed rule would amend the definition of a fishing trip at Sec.  
679.2 to require that a new fishing trip would start or end when a non-
AFA trawl C/P entered or exited a Steller sea lion protection area that 
was closed to directed fishing for Pacific cod or Atka mackerel at 
Sec.  679.22(a)(7)(i), (a)(7)(v), (a)(7)(vi), (a)(8)(i), (a)(8)(iv), 
and (a)(8)(v).
    MRAs would always be applied or accounted for instantaneously 
during a non-AFA trawl C/P fishing trip to its retention of Atka 
mackerel and Pacific cod at Sec.  679.20(e)(3)(iv) . This provision 
would apply to any portion of a haul that occurs inside the Steller sea 
lion protection area described at Sec.  679.22(a)(7)(i), (a)(7)(v), 
(a)(7)(vi), (a)(8)(i), (a)(8)(iv), and (a)(8)(v). If any portion of a 
haul made by a non-AFA trawl C/P occurred inside these Steller sea lion 
protection areas, then all the catch from that haul would be accounted 
for as a fishing trip that occurred inside the Steller sea lion 
protection area for purposes of calculating MRAs.
    The purpose of the proposed MRA accounting requirements at Sec.  
679.20(e)(3)(iv) is to provide a verifiable account of retained catch 
for members of the non-AFA trawl C/P sector and NMFS, consistent with 
the intent of Steller sea lion protection measures. These proposed 
requirements would provide clear instructions to operators for 
calculating retained catch from a tow that occurs wholly or partially 
in a Steller sea lion protection area. The requirement would also 
assist NOAA Office for Law Enforcement and the U.S. Coast Guard in 
monitoring compliance of retained catch for Pacific cod and Atka 
mackerel. It would better ensure compliance with Steller sea lion 
protection measures that prohibit directed fishing for these species in 
Steller sea lion protection areas because MRA accounting for these 
species would be applied at any time during a fishing trip inside 
protection areas. This MRA accounting regulation would continue to 
provide flexibility for a vessel to haul through a Steller sea lion 
protection area without retrieving gear and starting a new haul.
    Revision to definition for ``fishing trip''. The definition of a 
fishing trip in Sec.  679.2 would also be amended to require that a new 
fishing trip would start for a non-AFA trawl C/P when ``any( fish or 
fish products are offloaded or transferred. This requirement would 
modify the current requirement that a fishing trip is triggered by the 
offload or transfer of (all( fish or fish product from the vessel, and 
would prevent partial offloads by non-AFA trawl C/P for purposes of 
calculating MRA amounts. Because MRA accounting for non-AFA trawl C/Ps 
would occur at the end of a fishing trip, partial offloads of 
groundfish that do not trigger a new fishing trip could reduce the 
effectiveness of MRA accounting for this sector. For example, if the 
offload consisted predominantly of groundfish that were closed to 
directed fishing, without offload of sufficient basis species to comply 
with the MRA, a vessel could then return to the fishing grounds 
numerous times and avoid matching the designated amount of basis and 
incidental amounts defined by an MRA. That vessel could continue this 
practice to avoid complying with an MRA and would not be in violation 
of MRA regulations.
    Compliance with proposed MRA revisions. Compliance with MRA 
accounting at the end of a fishing trip would be monitored with the 
same reporting forms that are used for monitoring current MRA 
regulations. The trawl C/P Daily Cumulative Production Logbook and 
processed product onboard a vessel could be audited by enforcement 
officers during a vessel boarding. The uncertainty associated with 
unscheduled boardings and audits of retained catch would facilitate C/P 
compliance with MRA restrictions under the proposed rule. NOAA Office 
of Law Enforcement also would be able to review logbook and production 
reports submitted by the vessel operator to track and identify 
intentional or unintentional MRA violations.
    Conservation issues associated with proposed MRA revisions. Relaxed 
MRA accounting should not lead to an increase in catch for most 
groundfish species in the BSAI. The draft Environmental Assessment 
supporting this action concluded that these MRA proposals would not 
increase the risk of exceeding a TAC, cause conservation concerns, 
interfere with associated management objectives, or be unenforceable.
    Other Proposed Regulatory Amendments. At Sec.  679.20(e)(3)(iii), 
the citation defining which vessels qualify as non-AFA trawl C/Ps, 
would be revised. When the AFA was authorized by the Secretary of 
Commerce in FMP Amendments 61/61/13/8 (67 FR 79692, December 30, 2002), 
most AFA qualified trawl C/Ps were listed at Sec.  679.4(l)(2)(i). For 
purposes of this action, non-AFA trawl C/Ps would be those trawl C/P 
vessels that are not listed at Sec.  679.4(l)(2)(i). The proposed rule 
clarifies this definition of non-AFA trawl C/Ps in both Sec.  679.2 and 
Sec.  679.20(e)(3)(iii).
    At Sec.  679.20(d)(l)(iii)(B), the list of exceptions to the 
requirement to calculate MRAs at any time during a fishing trip, is 
expanded to include the proposed requirements at Sec.  679.20(e)(3).
    The definition of a ``fishing trip'' would be reorganized at Sec.  
679.2(l)(i) to clarify when a catcher/processor vessel or mothership is 
engaged in a fishing trip. At Sec.  679.2(l)(i)(B) the sentence 
identifying that offload and transfer of fish product is one trigger 
for a fishing trip is also reorganized. These are both technical 
changes that reorganize the presentation of the correct fishing trip 
triggers but do not make substantive changes in these requirements.

Classification

    Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens 
Act, the NMFS Regional 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 
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, the reasons 
why it is being

[[Page 7213]]

considered, and a statement of the objectives of 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 summary of the 
analysis follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    The directly regulated entities are the commercial fishing entities 
that operate non-AFA trawl C/P vessels in the BSAI groundfish 
fisheries. Under a conservative application of the Small Business 
Administration criterion and the best available data, the total number 
of small entities directly regulated by the proposed action is 
estimated as three out of a total of 22 vessels participating in 2006.
    Impacts to small entities, while uncertain, are anticipated to be 
beneficial. This proposed rule is likely to reduce the burden of 
existing MRA accounting restrictions on the non-AFA trawl C/P sector by 
increasing the amount of time that these operations have to comply with 
MRAs for a selected group of species.
    Each of the action alternatives would provide additional 
opportunity for non-AFA trawl C/P vessels to increase retention of 
selected groundfish species. Alternative 1 (no action), would continue 
to apply the current instantaneous MRA accounting regulations. These 
regulations require that for all groundfish other than pollock, an MRA 
may not be exceeded at any point during a fishing trip. The existing 
accounting and enforcement of MRAs may result in some small and large 
entity non-AFA trawl C/Ps selectively discarding incidentally caught 
species so as to not exceed the instantaneously enforced MRA. In some 
years, this constraint could result in additional discards of 
groundfish that would otherwise be retained.
    The Council also considered Alternatives 2 and 3 for relaxing MRA 
accounting and several species options to include within these 
alternatives. Alternative 2 would change the time interval for 
accounting for selected species that may be retained in the BSAI, 
including Steller sea lion protection areas, to the end of a fishing 
trip. This alternative is intended to increase the time allowed for an 
entity to meet required retention percentages published in regulation, 
but lacks the instantaneously applied MRA accounting requirements, 
additional trip triggers, and C/P reporting requirements anytime a non-
AFA trawl C/P enters or leaves a Steller sea lion protection area, 
included in Alternative 4.
    Under Alternative 3, MRA accounting would be extended beyond a 
weekly reporting period to the time of offload which may increase the 
amount of species harvested when that species is closed to directed 
fishing. More frequently, larger vessels in the non-AFA trawl C/P 
sector offload every 6 to 7 days, while smaller vessels may offload 
every 7 to 10 days. Absent any other trip ending events, a trip could 
increase to as many as 10 days. The IRFA discusses a significant 
monitoring and enforcement issue with Alternative 3. Compliance 
monitoring of offload-based accounting would depend upon inspection of 
holds and product by NOAA Office of Law Enforcement primarily at the 
point of offload. The longer interval of time to comply with an MRA 
under in this alternative could provide a vessel operator with some 
incentive to inaccurately report weekly production, if that person 
believed that no enforcement officer would be present at the point of 
landing.
    Alternative 4 is the preferred alterative selected by the Council. 
This alternative would allow non-AFA trawl C/Ps to apply MRAs at the 
end of a fishing trip for 8 species of groundfish to provide greater 
flexibility for operators to retain groundfish species in the BSAI 
without creating some of the enforcement and management concerns 
associated with Alternatives 2 and 3.
    Small entities may have greater flexibility to improve the value of 
a fishing trip under Alternative 2 or 3 compared with the preferred 
alternative; however the EA for this action identified a concern for 
Steller sea lions under these two alternatives. It is possible that 
localized depletion of Atka mackerel and Pacific cod in Steller sea 
lion protected areas could occur under Alternatives 2 and 3 if vessels 
in the non-AFA trawl C/P sector were to increase catch of these two 
groundfish species during a fishing trip. This could lead to further 
consultation under the Endangered Species Act for Steller sea lions. 
The preferred alternative, in contrast, retains the status quo MRA 
accounting in Steller sea lion protection areas for Atka mackerel and 
Pacific cod. NMFS cannot determine the impacts on distribution of catch 
or impacts on communities of any of the alternatives because these 
regulatory alternatives are not anticipated to significantly change the 
total amount of groundfish processed or delivered to communities 
compared with existing management measures implemented for BSAI 
groundfish fisheries. Changes in economic activity within a given 
community could result from slightly larger, or a different, 
distribution of offloaded products, but the magnitude of the change 
between any of the alternatives is expected to be small.
    The operator of a non-AFA trawl catcher/processor would be required 
at Sec.  679.5 to start a new C/P trawl gear daily cumulative 
production logbook page (logsheet) at the beginning of each fishing 
trip. This information would be required to properly aggregate 
production by fishing trip and to assist both the vessel operator and 
authorized officers to monitor compliance of MRAs.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA), which has been approved by OMB 
under Control Number 0648-0213. Public reporting burden for the 
catcher/processor trawl gear daily fishing cumulative logbook is 
estimated to average 30 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing 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, and no person shall 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.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries.

    Dated: February 9, 2009.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 679 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.; 
and Pub. L. 108(199, 118 Stat. 110.
    2. In Sec.  679.2, under the definition of ``Fishing trip'', revise 
paragraphs (1)(i) introductory text, (1)(i)(B), (1)(i)(E), and (1)(ii) 
and add paragraph (1)(iii) to read as follows:

[[Page 7214]]

Sec.  679.2  Definitions.

* * * * *
    Fishing trip means:
    (1) * * *
    (i) For all catcher/processor vessels or motherships. Except as 
provided in paragraph (1)(ii) of this definition, an operator of a 
catcher/processor or mothership is engaged in a fishing trip from the 
time the harvesting, receiving, or processing of groundfish is begun or 
resumed in an area until any of the following events occur:
* * * * *
    (B) All fish or fish product are offloaded or transferred from that 
vessel;
* * * * *
    (E) The end of a weekly reporting period.
    (ii) For non-AFA trawl catcher/processors. For those catcher/
processors using trawl gear and not listed at Sec.  679.4(l)(2)(i), a 
new fishing trip begins from the time the harvesting, receiving, or 
processing of groundfish is begun in an area until any of the following 
events occur:
    (A) Any of the events listed in paragraphs (1)(i)(A) through (E) of 
this definition;
    (B) The vessel enters or leaves a Steller sea lion protection area 
described at Sec.  679.22(a)(7)(i), (a)(7)(v), (a)(7)(vi), (a)(8)(i), 
(a)(8)(iv), and (a)(8)(v); or
    (C) Any fish or fish product are offloaded or transferred from that 
vessel.
    (iii) Catcher vessels. A catcher vessel is engaged in a fishing 
trip from the time the harvesting of groundfish is begun until the 
offload or transfer of all fish or fish product from that vessel.
* * * * *
    3. In Sec.  679.5, paragraph (c)(4)(iv)(B)(3) is added to read as 
follows:


Sec.  679.5  Recordkeeping and reporting (R&R).

* * * * *
    (c) * * *
    (4) * * *
    (iv) * * *
    (B) * * *
    (3) For non-AFA trawl catcher/processors. The operator of a 
catcher/processor using trawl gear and not listed at Sec.  
679.4(l)(2)(i) must start a separate logsheet page at the beginning of 
a new fishing trip as defined at Sec.  679.2. If a logsheet page 
represents the start of a new fishing trip, write ``Start of a new 
fishing trip'' in the Comments section of the logsheet page.
* * * * *
    4. In Sec.  679.20, revise paragraph (d)(1)(iii)(B), (e)(3)(ii), 
the first sentence of paragraph (e)(3)(iii) and add paragraph 
(e)(3)(iv) to read as follows:


Sec.  679.20  General limitations.

* * * * *
    (d) * * *
    (1) * * *
    (iii) * * *
    (B) Retention of incidental species. Except as described in 
paragraphs (e)(3)(iii) and (iv) of this section, if directed fishing 
for a target species, species group, or the ``other species'' category 
is prohibited, a vessel may not retain that incidental species in an 
amount that exceeds the maximum retainable amount, as calculated under 
paragraphs (e) and (f) of this section, at any time during a fishing 
trip.
* * * * *
    (e) * * *
    (3) * * *
    (ii) Except as provided in paragraphs (e)(3)(iii) and (iv) of this 
section, for catcher/processors fishing in an area closed to directed 
fishing for a species or a species group, the maximum retainable amount 
applies at any time during a fishing trip.
    (iii) For all vessels not listed in Sec.  679.4(l)(2)(i), the 
maximum retainable amount for pollock harvested in the BSAI applies at 
the end of each offload and is based on the basis species harvested 
since the previous offload. * * *
    (iv) For catcher/processors using trawl gear and not listed in 
Sec.  679.4(l)(2)(i), the maximum retainable amounts for yellowfin 
sole, flathead sole, other flatfish, rock sole, arrowtooth flounder, 
Atka mackerel, and Pacific cod in the BSAI, and Pacific ocean perch in 
the AI apply at the end of a fishing trip, except the MRA for Pacific 
cod and Atka mackerel apply at any point in time during a fishing trip 
inside the Steller sea lion protection areas described at Sec.  
679.22(a)(7)(i), (a)(7)(v), (a)(7)(vi), (a)(8)(i), (a)(8)(iv), and 
(a)(8)(v). In addition, if any portion of a trawl haul is from inside 
these Steller sea lion protection areas, then all of the catch from 
that haul must be attributed to the fishing trip that occurred inside 
the Steller sea lion protection area for purposes of calculating 
maximum retainable amounts.
* * * * *
[FR Doc. E9-3184 Filed 2-12-09; 8:45 am]
BILLING CODE 3510-22-S